Cases by Issue - Union-Union Member Dispute

Air Line Pilots v. O'neill - Oral Argument

Fri, 09 Jan 2009 14:49:40 +0000

Case:

Air Line Pilots v. O'neill

Media File:

89-1493_19910114-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Laurence E. Gold

Chief Justice Rehnquist: We'll hear argument first this morning in No. 89-1493, the Air Line Pilots Association, International v. Joseph O'Neill.

Mr. Gold.

Mr. Gold: Thank you, Mr. Chief Justice, and may it please the Court:

This case concerns the duty of fair representation this Court has implied from the Railway Labor Act and the National Labor Relations Act.

In particular it concerns the end of a long and bitter strike well-chronicled in the press between the Air Line Pilots Association and Continental Airlines and its Chief Executive, Mr. Lorenzo.

The strike began in '83 after... 1983 after Continental went into bankruptcy and abrogated the collective bargaining agreement between the parties.

And the events here concern the situation in August, September, and October of 1985.

At that point, the union was faced with the following facts of life.

One, despite substantial expense and unstinting effort, the union had failed to significantly affect Continental's business.

Secondly, Continental at that point had 1,600 working pilots, either permanent replacements or crossovers, and there were 1,000 strikers.

Third, Continental, in recognition of that, had withdrawn recognition of the union.

Fourth, Continental had put out what was called its 85-5 vacancy bid which would have tied up all the most desireable jobs in the air line, the captain and first officer jobs, for the foreseeable future.

And finally, insofar as strikers had bid for those jobs, Continental had sued to invalidate those bids as fraudulent.

Against that background, the union, after internal meetings and discussions, authorized the negotiation of the a settlement.

As matters turned out, given the difficulties to only be expected in such a bitter strike and with such a large company, the settlement proceeded under the auspices of the bankruptcy court, which had jurisdiction over Continental at that point.

After very intensive efforts, a long, complex document emerged called the Order and Award which is in the joint appendix.

Unknown Speaker: Call the what award?

The Order and--

Mr. Gold: Order and Award.

Yes.

It was issued as an order of the bankruptcy court.

It's undisputed that all but two of its terms were negotiated between the parties, but it was under the auspices of the court.

Court had attempted as part of the reorganization as far back as July to get the parties to settle this dispute, because it was an obstacle to reorganization.

And finally it was in this October period that the union came forward.

The court had also indicated that it wanted, if it was going to put its efforts into it, to have authorized representatives and to have a binding conclusion to the matter.

And that, too, was very much in the union's interest as the negotiators saw it, because of the grave distrust between the parties.

It was a substantial matter to the union that whatever was concluded would be enforceable, because, as I say, the level of distrust between Mr. Lorenzo and ALPA was substantial at the time.

In late October this agreement as embodied in the Order and Award was reached, and thereafter this lawsuit followed.

The lawsuit was brought by a class of striking pilots alleging that the union, in taking the course that it did, had violated the statutory duty of fair representation.

After 18 months of--

Unknown Speaker: --[inaudible] statutory.

Mr. Gold: --Yes.

And we acknowledge that and we acknowledge the bite of the duty in terms of its obligations of honesty and good faith.

Those... those aspects--

Unknown Speaker: But not arbitrariness?

Mr. Gold: --Not arbitrariness in the sense that the court of appeals understood arbitrariness.

The district court, after extensive discovery and on the union's motion for summary judgment, concluded that there's nothing to indicate that the union made any choice other than on the best deal that the union thought it could construct and on that view of the standard to be applied determined that summary judgment was appropriate.

On appeal, the court of appeals disagreed on two grounds.

First, the court of appeals took the position that the duty of fair representation goes not only to the union's bona fides, but also provides for judicial review of the substance of the union's action.

As the court put it, union actions must be based on relevant, permissible factors and must be a rational result of such factors, as rational was determined either by a judge or a jury.

And the court of appeals determined that a finder of fact could find that the agreement put members in a substantially worse position than if no settlement had been made and the strike had been abandoned and individuals had made unconditional offers to return.

In addition, the court--

Unknown Speaker: But would you think that that was within the district court's finding that the union got the best deal it could?

Mr. Gold: --Yes.

Unknown Speaker: Including no deal, in effect... just abandoning the strike?

Is that clear?

I'm not sure.

Mr. Gold: The... well, we believe that the court of appeals' opinions said that the union proceeded on an honest, good-faith determination that this was the best way to proceed and that that satisfied the standard.

The court of appeals, on the other hand as we understand it, and this is the line of demarkation, said that the court of... the trier of fact should have determined whether this deal was good enough when compared with what would have happened hypothetically in the event that the union had made an unconditional offer to return to work.

Unknown Speaker: The best way to proceed taking into account what?

Is there a wade into that, the damage to the power of the union that would have occurred from unconditionally giving in after a long strike and bitter strike?

Mr. Gold: The--

Unknown Speaker: Is that part of the factor that the union was allowed to take into account?

Mr. Gold: --As we understand the court of appeals' decision, the host of uncertainties and the nature of the factors that are to... I'm sorry, the role of the host of uncertainties that the union and the striking pilots faced and the calculus of factors that are to be taken into account are both disregarded.

We don't know from reading the court of appeals' opinion what goes into this calculus.

And that is one of our prime concerns.

Unknown Speaker: Well, what do you think for purposes of a good-faith test which you are urging?

Do you take into account for good faith the fact that the union was looking to its national power and how that would be eroded by losing a strike of this sort that had gone on for 2 years and was so bitter?

Or is good faith to be determined solely on the basis of what was good for the members of this bargaining unit?

Mr. Gold: Well, it seems to us that if we reach that point, and there does not seem in this case to be any evidence opposing that conundrum, that the union is entitled to take into account the... the total situation of the pilots.

After all, these are people following or calling with a skill, and we certainly would believe that if--

Unknown Speaker: To sacrifice the members of this bargaining--

Mr. Gold: --Well--

Unknown Speaker: --unit for the benefit of members of other bargaining units.

Mr. Gold: --With all deference, that isn't what I said.

Unknown Speaker: Well, no, I'm... well, it's the way I would put it.

Are they and--

Mr. Gold: No, I--

Unknown Speaker: --I mean, it's like the word sacrifice.

It's not necessarily a bad thing.

The union has the interest of many bargaining units nationally.

It might well intelligently decide that we could get a better deal from the employer of this bargaining unit by throwing in the towel on unconditionally giving up the strike, but that would impair our position nationwide and other bargaining units would be hurt.

Now, can they take into account other bargaining units in the deal that they make or must their... all their actions be for the best interest of the single bargaining unit at issue?

Mr. Gold: --I think the union can take into account the total labor market situation.

What I started to say is that if the union determines that tossing in the towel would undermine its situation... would undermine the total situation facing pilots overall, including the striking pilots, who have a calling, have a skill, and will only get on in the labor market for that calling and skill what the union is able to do, that would be a legitimate consideration.

Now where one would come out if the union was firmly of the view that it would advance the situation of A and B somewhere else while harming these people, I find a much more difficult question.

But I do think that, in a world in which you have competition in the product and service markets for the union be forced to look only at the situation of the particular unit, as if it was a discrete entity, when in fact it isn't, would be to... wouldn't be to further the notion the court of appeals had, mainly a rationality standard.

It would be to require the union to proceed in a way that is irrational.

I think we're very, very far from that on anything in this case.

The negotiators proceeded who were out of this system's board, this master executive counsel.

The Continental system appeared to proceed and took their view as they were trying to get the best deal that they could get, not the best deal for... in a different and wider perspective.

It's our view that the court of appeals erred in subjecting this agreement to this kind of substantive scrutiny.

We believe that the duty of fair representation, as the Court said in Steele, is a duty to act in behalf of all those for whom it acts without hostile, namely irrelevant or invidious, discrimination against them.

Unknown Speaker: Mr. Gold, the court of appeals used the word "arbitrary".

Do you say that the... that arbitrary has no place in the test or that they simply misunderstood the meaning of the word arbitrary?

Mr. Gold: We believe that they misunderstood the meaning of the word arbitrary.

As we detail in our brief starting on page 14, the court has used different formulations to delineate the scope of the duty of fair representation, and the court has used the word arbitrary in doing so.

We believe that the fairest reading of all the cases is that arbitrary in that sense means hostile action against an individual or a subgroup of the bargaining force.

In other words, the union generally processes grievances by doing certain preliminary steps.

An individual shows that without any justification, any reason, the union doesn't do those things for him and he is harmed.

We would think that that is arbitrary and that it adds something to the concept of discriminatory, because discrimination, certainly as it was used in Steele, has a notion of a class-based wrong.

So what we would suggest is that this test is a test of good faith and honesty of purpose as the Court said in Ford Motor and that what arbitrary means is that discrimination, which is either class based or is simply inexplicable and harmful, is a wrong.

Unknown Speaker: Well, Mr. Gold, that was going to be my question.

Suppose the union commits what in other circumstances, say, in the legal profession, would be malpractice.

It misses a grievance deadline.

But it's in very good faith.

It... now is there liability there?

Mr. Gold: No, the essence of our argument is that this duty doesn't create a liability for honest mistakes, so--

Unknown Speaker: So we're talking here about a standard that applies across the board, administration of the contract, grievances, routine procedures, as well as the more complex context of conducting bargaining?

Mr. Gold: --Well, we make three different arguments in support of our position that the court of appeals was wrong here.

The first is the one you've just stated.

The second is that at the very least this test of honesty and good purpose ought to apply in the most complex situations, namely the negotiation of agreements or the renegotiation of agreements even if it doesn't apply in what are arguably simpler cases involving grievance handling.

And third, we argue that the court of appeals was certainly wrong in terms of the way it understood whatever duty of adequate representation that exists, that instead of looking at the matter in terms of the practical and legal uncertainties at the time, looking at the situation that actually faced the union, and looking also at the fact that the ultimate agreement provided for benefits for the striking employees such as severance pay, recall in seniority order, and so on that were not legally required, that this was not an agreement which was... is challengeable even under a duty of care.

Unknown Speaker: Well, I... on duty of care, you'll recall from the Rawson case where the union allegedly negligently contributed to the death of mine workers, we said that the union could not be sued under State law.

And now you're saying there's a broad immunity based on a good-faith standard under Federal law.

I know of--

Mr. Gold: Well, basically--

Unknown Speaker: --I know of no parallel in all of the law, other than for sovereign immunity, which gives an immunity that tests... is that extensive.

Mr. Gold: --The... as we understand Rawson, Justice Kennedy, the Court also said that a negligence claim would not be actionable under the duty of fair representation.

It was not simply that it would not be... there would be an actionable State law claim.

So that the standard is certainly, from what we know from this Court's cases, higher than negligence.

But our--

Unknown Speaker: Mr. Gold, I had really thought that our cases had spoken in terms of a reasonableness component to the arbitrary standard here and that you would have us read that out of the standard and limit it to negotiations or actions taken in bad faith or with hostility.

Now, do you really find support in our case law for that kind of a limitation, or don't we find that the arbitrary component of Vaca against Sipes' standard imports some degree of reasonableness inquiry?

Mr. Gold: --Well, if I can, there are two things I'd like to say about that.

First of all, as we attempt to develop in our reply brief, the wide range of reasonableness language is in Ford Motor Company... this is at pages 2 to 4 of our reply brief.

And the context there was to determine whether a distinction between veterans or nonveterans was a distinction which was invidious and irrelevant or relevant to the union's task.

So the reasonableness was in setting up the classifications.

As we point out, the Court did not go on to see whether veterans got too much seniority or too little; and we certainly acknowledge that, in terms of drawing distinctions, there is a reasonableness component.

The second point I would like to make is that the Lockridge case which is the last case which fully explores the nature of this duty, like Steele, which was the first case, talks entirely in terms of honesty and good faith.

In terms of why there should be such a duty, if I could in... given Justice Kennedy's question, we believe that the answer is that this is a statutory duty, and it comes out of a statute whose overriding function was to take judges and juries out of the substance of labor relations and to put those tasks into the hands the parties.

We discuss and cite the H.K. Porter case and Senator Walsh's famous statement there that the act takes the parties to the negotiating table and leaves them there.

To have judges and juries saying this deal is not good enough, even though it was honest, even though it was based on a fair judgment of the circumstances and that you had to do it a different way is to get--

Unknown Speaker: You don't suggest that fairness has any part of it, do you?

Mr. Gold: --Well, fairness in the sense of--

Unknown Speaker: Is it [inaudible]--

Mr. Gold: --a duty of loyalty, fairness in the sense of--

Unknown Speaker: --I know, but you sounded like you were saying substantively it was fair.

Mr. Gold: --You mean--

Unknown Speaker: The terms agreed upon were fair.

Mr. Gold: --We believe that we can meet--

Unknown Speaker: I know, but you don't--

Mr. Gold: --that standard, but we're--

Unknown Speaker: --You mean judges are supposed to decide whether they were fair or not?

Mr. Gold: --Well, no.

We are arguing that that is precisely what labor relations is not about.

There are a lot of mean, unfair deals out there when you take into account that the company had the power and the union had less.

Unknown Speaker: Oh, it... you don't really... you've been living... the unions have been living with this Vaca standard for a long time, and I have noticed in all the cases that come around here that you've been really hurt very much by that element in it.

I had thought the judges thought about arbitrariness that no fool in his right mind would ever have agreed to this.

This is completely irrational.

Now, that's a... that's a... that isn't looking over the shoulders of the union or really second guessing you.

Mr. Gold: Well, that is... that is certainly not the view... the view you just stated is certainly not the view of Vaca that the Fifth Circuit in embraced in this case.

Unknown Speaker: That may be.

But haven't you been living with the arbitrariness standard interpreted in that way for a long time?

Mr. Gold: We have been living with a regime which is going to end with this case one way or another in which different courts have taken different views.

The Seventh Circuit, for example, has consistently taken the view that I have just outlined.

Other courts have been back and forth, some distinguishing between negotiation and some not.

I do want to emphasize that--

Unknown Speaker: Does the Seventh Circuit go right across the board with this test?

Mr. Gold: --It had up until the Thomas case, when it appeared to draw a distinction between negotiation and nonnegotiation.

Unknown Speaker: Well, that's the last case, isn't it?

Mr. Gold: I--

Unknown Speaker: In the Seventh Circuit?

Mr. Gold: --I believe there is subsequent case which could be fairly read to go back the other way, but I'm not positive.

I'd like to, if I could, save a moment or two for rebuttal.

Unknown Speaker: Very well, Mr. Gold.

Mr. Harper, we'll hear now from you.

Argument of Marty Harper

Mr. Harper: Mr. Chief Justice, and may it please the Court:

We are here on a court of appeals reversal of summary judgment, and in analyzing this case, we cannot overlook that fact.

The Fifth Circuit Court of Appeals, in reversing the district court, correctly applied the summary judgment standards of the Fifth Circuit and of this Court.

In addition, in analyzing the union's conduct, the Fifth Circuit court of appeals applied the three-prong standard set forth in Vaca v. Sipes, which has been around and the unions have been dealing with for 24 years.

What the union wants to do today is to convince the Court to change the law so that it can avoid liability to 1,400 striking pilots who remained out on strike for 2 years.

In essence, what the union wants is a standard of conduct that is based upon subjective hostility.

In other words, they want to be immune from having their substantive decisions reviewed at all.

It should not come as any surprise to the Court--

Unknown Speaker: What do you think the word "arbitrary" suggests to courts of appeals?

Is... are they supposed just to say, well, the union is guilty or is liable because we wouldn't have done what they did?

Mr. Harper: --Your Honor, I don't think it's that complicated at all.

Unknown Speaker: xxx not answering my question--

Mr. Harper: What arbitrary means I believe, Your Honor, is simply the question as to whether a reasoned decision was needed and whether a reasoned decision was made.

And in deciding that, what needs--

Unknown Speaker: --The court is permitted to say, well, we wouldn't have done it this way because we don't think it was reasonable?

Mr. Harper: --Absolutely not, Your Honor.

And second-guessing is not what the court--

Unknown Speaker: What are they... what should they say then?

Mr. Harper: --They should look at the decision, Your Honor, and try to find out and look at what the relevant factors were that the union officials considered in making a decision and then determine if the decision was based upon an in fact consideration of those factors.

And if in fact the judgment or conduct is not based upon a reasoned consideration of relevant union factors, then the conduct is arbitrary.

But this--

Unknown Speaker: How's that any different than negligence?

Mr. Harper: --It's a higher standard, Your Honor, than negligence.

Unknown Speaker: Well, you say so.

But how do you distinguish between a negligently conducted negotiation and an arbitrary one?

Mr. Harper: You have to look at the factors, Your Honor, that went into the conduct that the union followed and look at the actual circumstances that were taken into consideration which were going to be numerous, and then balance to see if the decision was made based upon a rational consideration of those factors.

Unknown Speaker: Because--

Mr. Harper: That's a higher standard than simply breaching the... breaching a duty or a negligence.

Unknown Speaker: --Well, it may not have a community standard of care component.

I suppose that's the only difference.

I find it very, very difficult to distinguish the two.

Mr. Harper: Those are difficult items to distinguish, Your Honor, and what we are dealing with is a continuum of arbitrariness, and there comes a point in time like in the Rawson case where this Court has decided that an allegation based upon pure negligence is not sufficient to staying a breach of duty of fair representation.

But an allegation based upon conduct that is more serious than that, not taking into consideration relevant factors, and then moving off and making the decision that's not based upon those factors, it's arbitrary, Your Honor.

Unknown Speaker: Mr. Harper, would you standard require detailed examination of how the union officials went about reaching this agreement?

You say it has to have... they have to must have considered all the factors.

That opens up, I presume, just, you know, what went on at the meetings of the officials who were given the responsibility for trying to settle the thing.

Mr. Harper: Mr. Chief Justice, it would require the plaintiffs in this type of situation to identify as best they can through discovery and the trial the factors that were actually in fact considered by the union negotiators or the union officials when they made a decision and then would have to go step further to demonstrate whether or not the decision was based upon a consideration of those factors.

In this case, what has happened, Your Honor, is many of the arguments that have been advanced here to justify what the union did are post hoc arguments of counsel.

Unknown Speaker: What if a court reviewing the union's conduct feels, yes, the union considers all... considered all the factors that it said it was going to consider.

But in the view of the court there was a factor that it should have considered but didn't.

Mr. Harper: Your Honor, the court does not substitute as judgment for that and if you go back to the case here, the O'Neill case, and look at the basis upon which the Fifth Circuit rendered its opinion, which is the Tedford opinion, you will find exactly that sort of analysis in the Tedford opinion.

In the Tedford opinion, there are a couple of judgments that the union officials could have made.

The court of appeals went out of its way to say we are not going to select whether or not it was correct for the union to do one or the other.

All we're going to do is to analyze that the decision that was made... to ensure it was based upon relevant factors and that the judgment was based upon relevant factors.

If it is, it would be arbitrary.

Unknown Speaker: And if a court says we see a factor we think the union should have considered.

The union didn't purport to consider it, it didn't consider it, that would allow it to set aside the decision?

Mr. Harper: Not necessarily, Your Honor.

Unknown Speaker: But it's a possibility?

Mr. Harper: The trier of fact may find that in the totality of the circumstances, the union didn't act rationally or reasonably in going about the decision that it made.

Take into consideration factors as evidence that the union officials might not have considered which would support the conclusion by the trier of fact that the conduct was arbitrary.

Unknown Speaker: But of course if you say the union didn't act reasonably, that isn't far from a negligence standard, is it?

Mr. Harper: Under some circumstances, Your Honor, in this area it... the line starts to fuzz.

Well, we do not believe--

Unknown Speaker: Well, you could... could you live with a standard that says that the court should ask if any rational union negotiator could possibly have come to this conclusion?

Mr. Harper: --We're not--

Unknown Speaker: Which is certainly more a... that's a... that gives them a lot more room than insisting that they have to be reasonable.

Mr. Harper: --Your Honor, all we are are... our position is that all we need to have is an obligation upon these union officials to consider relevant facts and make a decision based upon those.

Unknown Speaker: Well, if a union... if the court thinks a... that there are factors a union... they think the union didn't consider, shouldn't they also ask, well, would any rational person... could any rational person have put those factors aside?

Mr. Harper: That's a relevant consideration when you evaluate at the trial level the conduct of the union.

In this case, for example, the record does... shows or demonstrates that during the critical negotiation the individuals who made the decision did not consider an unconditional offer to return to work as a viable alternative before they decided to settle with Continental under the terms and conditions that they did.

That is evidence of arbitrary conduct, we [inaudible].

Unknown Speaker: Mr. Harper, the word arbitrary is not a... really a new one for us.

We've been using it for half a century to review agency action under the Administrative Procedure Act.

I think Mr. Gold has probably asked us to use it a number of times in that context... arbitrary, capricious, and abusive discretion, or otherwise not in according to the law.

Do you think that its meaning here in reviewing union action is about the same as its meaning in reviewing agency action under the Administrative Procedure Act?

Mr. Harper: I think it's very close to that, Your Honor.

In those types of considerations, you look at, if, for example, an agent... head of an agency has changed a policy and in order to have that act substantiated, there has to be some explanation, for example, as to why that policy was changed.

That's fundamentally the same sort of analysis that we think is appropriate here.

Unknown Speaker: And a court may think it's wrong but still not think that it's arbitrary.

Mr. Harper: Absolutely, Your Honor--

Unknown Speaker: I see.

Mr. Harper: --if in fact the decision has considered relevant factors.

It may be wrong.

It may be atrocious, as the district court said here.

It may be beyond what is reasonable as the chief negotiator said here.

It may have... if it's wrong and the process is intact, then the conduct would still be considered to be nonarbitrary, and as a result there's no liability associated with it.

Unknown Speaker: Do you think the Fifth Circuit was true to that position?

Mr. Harper: I think it absolutely was, Your Honor.

What they did was on summary judgment look at the record, which the trial court never did, and determine, based upon the review, that there were substantial facts in dispute--

Unknown Speaker: There was a triable issue of fact about arbitrariness.

Mr. Harper: --And--

Unknown Speaker: And about discrimination.

Mr. Harper: --And discriminatory.

And all they did is leave it for the trial court to decide, based upon an appropriate standard, whether the conduct by the union breached the duty of fair representation.

That's all the Fifth Circuit did.

Unknown Speaker: Whether there was enough evidence in the record that somebody could have concluded that it was arbitrary, defined in the right way.

Mr. Harper: That's correct and we haven't gotten there yet, Your Honor.

This is on summary judgment, and I think that the Fifth Circuit did exactly the right thing in leaving the ultimate issues as to whether or not this was a breach of the duty fair representation until trial.

Unknown Speaker: Mr. Harper, is there a genuine issue of material fact here as to whether the union acted in bad faith?

Mr. Harper: Your Evidence, there's evidence in the record and inferences that can be drawn from the evidence in the record at this particular time that in fact the union did act in bad faith.

And also that they acted in a discriminatory manner and in an arbitrary manner, and all of those items are included or--

Unknown Speaker: Did the Fifth Circuit review the evidence with an eye toward the bad-faith allegation?

Mr. Harper: --It does not appear from the record, Your Honor, that the court did that, but I don't think that the Fifth Circuit Court of Appeal purported to look at all of the items of conduct that this union engaged in and to make a conclusive decision on all elements at the summary judgment level.

Unknown Speaker: Mr. Harper, may I ask you two questions?

First, is it your position that if the record showed that the union did consider what... which would be better, the settlement or a surrender, an outright return to work, they considered it, but they came to an erroneous conclusion on the issue, you would lose?

Mr. Harper: If that was the only judgment, Your Honor, that was involved in this case, then the answer would be yes.

Unknown Speaker: So it's not critical for us to decide whether this was a worse deal than a return to--

Mr. Harper: Absolutely not.

Unknown Speaker: --But it is critical to decide whether they considered it.

And is it your position on that that the record is absolutely clear based on admissions by the union that they didn't or a total absence of evidence of any discussion of it?

Mr. Harper: Your Honor, based upon the record as we developed it through deposition testimony and through the gleaning of notes and records that the negotiators that we were entitled to depose, they did not consider at that critical point in time the unconditional offer to return to work.

I'd like to point out to the Court--

Unknown Speaker: But I'm asking you do you say that because there's a failure of... in absence of any evidence showing they did discuss it or is there evidence of an admission that they did not discuss it?

Which is it?

Mr. Harper: --There's evidence of the admission that they did not consider it at this point... at the point in time.

Unknown Speaker: I see.

Do you refer to that evidence in your brief?

Mr. Harper: Yes, we do, Your Honor, through the attachments, and it's probably set forth in a little bit more detail in connection with a motion for reconsideration.

Unknown Speaker: And I'd like to point out for the Justice that, you know, our discovery got stopped along the way.

So the discovery at this particular point in time is far from being completed.

We focused only on the pilot negotiators who made the decision or were involved in the decision at the end to settle the strike.

I thought the burden of the argument in your brief was that the settlement was much worse than a return to surrender, but you don't really rely on that?

Mr. Harper: No, we don't, Your Honor.

Unknown Speaker: I see.

Mr. Harper: But in fact it is.

And again it would be evidence at trial.

Unknown Speaker: But we don't have to resolve that in order to decide this case.

Mr. Harper: Not at this... not at this level, Your Honor.

Not at all.

Unknown Speaker: Mr. Harper, are you saying that in affirming the result below as you want us to do, we could do so consistently with your position and still repudiate the second of the factors which the court of appeals considered?

In other words, could you get where you want to go and in fact are you arguing that you should get where you want to go by having us hold that the court of appeals was correct in saying that a non-arbitrary decision must be based on relevant factors, but repudiate that second part of the test in which the court of appeals was saying that it must also be a rational result of considering those factors?

Do you want to jettison point 2 and still win?

Mr. Harper: We are not claiming and our position is that we have to focus on the result.

What our... what our argument is and it must be a rational consideration of those factors and the judgment based upon that--

Unknown Speaker: But if--

Mr. Harper: --and the result is only evidence, Your Honor, of the conduct that the union negotiators engaged in.

Unknown Speaker: --Well, then I guess I'm having the same trouble then that I think has been expressed earlier in this argument.

You apparently want us to go beyond or want courts to go beyond a finding that the appropriate factors were considered.

You want us... you want the courts to intrude to some degree into a... an assessment of the results achieved by considering those factors, don't you?

Mr. Harper: Yes, Your Honor.

Unknown Speaker: And are you satisfied... going back to Justice White's question, would you be satisfied if the Court stopped at saying this is one possible result within the realm of reasonableness so that if that test were satisfied, that would be the extent of the Court's scrutiny?

Mr. Harper: And if it's one possible result based upon a... the analysis that we have urged the Court, and if the... that determination then is that it's nonarbitrary because of the process that went through, then the results would be okay.

Unknown Speaker: But that involves more than just considering all the factors.

There are certain boundary beyond which your consideration, even if you've considered them all, your conclusion is just arbitrary.

I mean, a man comes up to you and puts a gun to your head and says, your money and... your money or your life, and you consider it very carefully and you say my life.

[Laughter]

I mean, that's... that's ridiculous, isn't it?

Just because you've considered that--

Mr. Harper: The two choice, Your Honor.

Unknown Speaker: --Yes.

Can't you reach a conclusion that is nonetheless arbitrary even if you've considered both?

Mr. Harper: That... you can, Your Honor, and that's why I think that there's more to it in the duty of fair representation, because there are... in contexts like this, there are a number of things that the union negotiators are going to take into consideration in arriving at the conclusion that they arrive at.

As long as those factors are relevant factors and the basis is... the decision is based on that.

Unknown Speaker: Can I ask you the same question I asked Mr. Gold?

Is one of the relevant union factors... are all the relevant union factors only factors that relate to this bargaining unit, or can the union in effect say, well, this result may be better for this bargaining unit but we have other fish to fry?

Mr. Harper: The union, Your Honor, has a duty to represent under the Railway Labor Act the members of this craft or class, and their conduct has to be a... on behalf and the benefit for the craft or class.

So for the most part--

Unknown Speaker: But that's not just the bargaining unit.

That craft or class in other bargaining units as well, no?

Mr. Harper: --In this case, Your Honor, the craft or class were the Continental pilots at Continental Air Lines.

Unknown Speaker: Not pilots at large in other airlines as well?

Mr. Harper: And what the problem is, Your Honor--

Unknown Speaker: Well, I--

Mr. Harper: --if you go beyond the class or craft, you're--

Unknown Speaker: --Let's make it clear what I'm asking you.

Suppose the union says it will be better for this bargaining unit, but we will just get clobbered in later negotiations with other airlines.

Our other pilots will be harmed if we simply, after a 2 years' worth of a bitter strike, throw in the towel.

Net... given all the pilots that we have to represent, it's better for all of them that this bargaining unit may not do as well, but we come to a negotiated end to the strike rather than simply abandoning it.

Is that... is that a reasonable decision?

Mr. Harper: --It may not be, Your Honor, because the problem with that is that that craft or class becomes a minority group within a larger class, and they run the risk, if they don't have this broad duty of fair representation, of being treated very badly in a discriminatory and arbitrary way by the union.

Unknown Speaker: So you say the reasonable factors that can be taken into account are only factors relating to the particular bargaining unit to which the negotiations pertain?

Mr. Harper: And what benefits them and what the union needs to do on their behalf in the context of that particular representation.

Unknown Speaker: The union cannot make a sort of command decision, saying we realize we're not doing very well by the Continental pilots and we could do better, but the long-run interest of the airline pilots we represent with all the other airlines would be served by this deal that doesn't do very well for Continental?

Mr. Harper: Those are considerations that the union might take into consideration, Your Honor, with respect to representing the craft or class--

Unknown Speaker: Well, but it's--

Mr. Harper: --but they can't override.

Unknown Speaker: --I think you can give a better... give a yes or no answer to something like that.

It seems to me you're quite nebulous on the point, unless you intend to be nebulous.

Mr. Harper: I don't intend to be nebulous at all, Mr. Chief Justice.

The... in this case the union should have taken into consideration only those factors that benefit this craft or class.

Unknown Speaker: Well, okay, but answer a hypothetical question.

The union decides that the proposed deal we're about to enter into with the... for the Continental pilots is not the best we could do for them, but if we don't take this, we are going to greatly harm pilots with American, United, all the other airlines we... so we're going to have to sacrifice a little bit of the interest of the Continental pilots in order to help all of the pilots we represent.

Can it do that?

Mr. Harper: Not to the detriment of the craft or class that they're representing, Your Honor.

Unknown Speaker: Well, but that doesn't... I think you could answer the question yes or no and then explain if you want to.

By hypothesis it is to the detriment of the Continental pilots.

Mr. Harper: And then that conduct, Your Honor, could be made.

It could be bad faith, it could be discriminatory, and it could be arbitrary in the way that they go about making that decision.

Because they're putting motives and events that are beyond what is on... in the best interest of the craft or class in these negotiations, and that is a breach of the duty of fair representation.

Unknown Speaker: You say it could be arbitrary, but is it as a matter of law arbitrary when they rely on the factors the Chief Justice described?

Mr. Harper: I would say no, Your Honor.

Unknown Speaker: It's not arbitrary?

Mr. Harper: Let me... it would... I'm sorry... if they put the national interest above?

Unknown Speaker: Yes.

Mr. Harper: It would be arbitrary conduct.

Unknown Speaker: As a matter of law in every case?

Mr. Harper: Uh--

Unknown Speaker: Counsel, do you... do you think the court of appeals applied the test they set down in the Tedford case?

Mr. Harper: --Yes, I do, Your Honor.

Unknown Speaker: Well, that test is a three-part test that says to be nonarbitrary the decision must be based upon relevant, permissible union factors; second, a rational result of the consideration of these factors; and three, and inclusive of a fair and impartial consideration of the interests of all employees.

So do you think that... you think a court has to get to the issue of fairness with respect to the various groups of employees?

Mr. Harper: In some regard they have to--

Unknown Speaker: Well, this is... what the Tedford test is, and that's what the court of appeals applied so they have a free wheeling... they can just decide whether it's fair or not, is that it?

Non-arbitrary?

Mr. Harper: --No.

It's part of the three-step procedure and analysis that the Tedford court requires, and in this case the results are evident, Your Honor, that the conduct was arbitrary because it was worse than an unconditional offer to return to work.

Unknown Speaker: Well, literally, this test means that the union... even if the union took... considered all relevant factors and gave rational consideration to it, nevertheless, they might be unfair, an unfair result.

Mr. Harper: In this case, the result... I don't know if it's unfair, Your Honor, but it has been characterized by the chief pilot negotiator as beyond what was reasonable, has been characterized by him as bastardizing forever the seniority system, and has been characterized by the district court as being atrocious.

Now if that's the same as being unfair, then those are the ways it has been characterized.

Unknown Speaker: I take it you have a right to jury trial under that Terry case?

Mr. Harper: Yes, Your Honor, as a result of the Terry opinion.

Unknown Speaker: Then reasoning backwards, I suppose it helps your position that we have to have a standard that manageable for the jury.

Mr. Harper: Absolutely.

There has to be a way--

Unknown Speaker: It's backwards reasoning, but I think perhaps we're compelled to engage in it.

Mr. Harper: --And that's all that... what happens, Your Honor, in cases like suits against fiduciaries, trustees, officers and directors of a corporation, or governmental agents, you have to be able to describe for the jury or the trier of fact where the conduct crosses the line.

And that's why I submit--

Unknown Speaker: I don't know that a jury could manageably consider an APA-type... Administrative Procedure Act-type of standard as to whether or not they... the unit acted rationally.

I don't know if the jury is capable of doing that.

Mr. Harper: --Justice Kennedy, the jury is capable though of making key decisions in antitrust, securities, breach of contract suits, and Justice Stevens has mentioned just last term that the reality of the employment relations are typical grist for a jury judgment.

So, in fact, it is our position that, given the correct instructions of law by the court, that it is perfectly... a jury is perfectly capable of judging the conduct engaged in by a union.

I'm getting close to the end.

One thing I would like to point out here that we have not talked about--

Unknown Speaker: Mr. Harper, before you do that, let me get... this relates to what the Chief Justice was asking you about.

All of your clients are union members in this case, isn't that right?

Mr. Harper: --That's correct, Your Honor.

Unknown Speaker: Now, I can understand why a nonunion member might have a cause for feeling aggrieved if the union didn't take it into account, exclusively the interest of his bargaining unit.

But all your union members join this union knowing it was an industrywide union that, you know, one for all and all for one.

They get some benefits from joining an industrywide union.

They could have had a union just for that shop, couldn't they?

Mr. Harper: That's correct.

Unknown Speaker: Just a special union for Continental.

But they chose to join ALPA in order to have the benefit of an industrywide union.

Now doesn't there go along with that the understanding that the union's going to bargain in the interest of the whole industry, not... not in the interest of just this bargaining unit?

Mr. Harper: They're going to bargain on behalf of the craft, Your Honor, and that the craft's interest has to come ahead of the national interest of the--

Unknown Speaker: But they have obligations... they have obligations to these other units as well, don't they?

Mr. Harper: --Absolutely.

Unknown Speaker: Can they settle this one to the detriment of the other ones?

Mr. Harper: No, Your Honor, they cannot do that.

Unknown Speaker: They can't do that and yet they can't take it into account either.

Mr. Harper: I'm sorry.

I misunderstood your... they can't settle it to the disadvantage of this particular craft, Your Honor.

Unknown Speaker: They could if they had a multiemployer bargaining unit, but they do not.

Mr. Harper: We do not have that here, Your Honor.

This is the master executive counsel for only the craft of pilots at Continental Air Lines.

And, Justice Scalia, one... I think what demonstrates where there is a real problem here with these pilots being represented by their union is in the superseniority aspects of it.

Because there the union did go beyond what was in the best interest of their pilots and they gave away to the non-striking pilots future vacancies to the detriment, the serious detriment, of the pilots who have been out on strike for 2 years.

And that's why we have to look at this thing as conduct that breaches the arbitrary standard, the discriminatory standard, and the bad-faith standard.

And that has been the standard that this Court has articulated for 24 years, and we think it ought to be the standard that applies here.

We ask this Court, with the Solicitor, to hold that the union leadership add full-scale responsibilities to its members.

We ask you to decide, as the Fifth Circuit did, that there was enough evidence in the record to show that the union defaulted on these responsibilities so that a trier of fact is entitled to pass upon that question.

We ask this Court to conclude that the... no union leadership is above the law, immune to the law, or should be permitted to be indifferent to the law.

The Air Line Pilots Association is not immune from its responsibilities which goes with that control.

Unknown Speaker: Could I ask you... do you read the court of appeals' opinion as saying that the... that there's evidence of discrimination as an independent reason for reversing the district court?

Mr. Harper: Absolutely, Your Honor.

Towards the end of the opinion, on the second or third page from the end, the court of appeals addresses that specifically and says that there's substantial evidence in the record to suggest that the union acted in a discriminatory way, and it's left up to the trial for... the point in time for the union is to answer why it did.

Unknown Speaker: What do you think discrimination means in that sense?

Is it... it's intentional discrimination?

Invidious discrimination or hostile or what is it?

Mr. Harper: It's conduct that is not based upon the best interest of the unit and disadvantages an individual or a group within the unit.

It can't be based upon irrelevant considerations like race, when the DFR first started back in Steele.

And we think that the decision here on the super-seniority issue to give up the future spaces to the non-strikers is a fundamental right that these strikers had upon the return to work, and without any justification, and if in fact justification is even permitted, these... this union acted discriminatorially towards these pilots by giving those away.

Thank you.

Unknown Speaker: Thank you, Mr. Harper.

Mr. Gold, do you have rebuttal?

You have 3 minutes.

Rebuttal of Laurence E. Gold

Mr. Gold: Thank you, Chief Justice.

It seems to me that the last point Mr. Harper made is very important in terms of understanding what the court of appeals did and what arbitrary means.

The whole discussion in the court of appeals and here is that the strikers were entitled to these so-called 85-5 bids.

There was no case law at the time on the status of vacancy bids and when a position is filled and when it isn't in the complexities of the bargaining unit.

The court of appeals made that decision as if the union knew what the law was.

The court of appeals made it for it after the fact at the point where the negotiators could not.

Unknown Speaker: Is this on the discrimination point?

Mr. Gold: It is on both the arbitrariness of the settlement and on the discrimination point.

With regard to the discrimination point, the court of appeals relied on a very expansive reading of Erie Resistor, which this Court later rejected in the IFA case just last year.

So, this would--

Unknown Speaker: What case last year, Mr. Gold?

Mr. Gold: --Trans World Air Lines v. Flight Attendants.

I think it's 489 U.S.--

Unknown Speaker: But what did the district court assume on that point?

Mustn't the district court have assumed that the union was uncertain as to what involved?

Mr. Gold: --Yes.

Unknown Speaker: Well, is it entitled to do that on a motion for summary judgment?

Mr. Gold: I don't think it assumed it.

There were 1,600 pages of deposition records or the motion for summary judgment showing that the union was proceeding on the basis that this wasn't locked up, that it was dealing with a hostile employer, and that making a deal was the best course.

That was his finding viewed that that was indisputed.

But--

Unknown Speaker: But that was controverted, wasn't it?

And wasn't... among the things controverted, wasn't the certainty of the law one of the controverted matters?

Mr. Gold: --But are we going to be in a position where the certainty of the law is to depend on whether a jury says that a single district court decision somewhere else makes the law certain?

I don't think that at all the court... the district court was right in terms of understanding that there was uncertainty, and the union was proceeding on the basis of uncertainty.

Unknown Speaker: Whether there's uncertainty is not the issue.

On your theory, the issue is whether the union itself was uncertain.

That... that's a good faith--

Mr. Gold: Well, that was not disputed.

The only dispute... the court of appeals decided that it was certain, not that the union was not uncertain.

By the same token, we're having a discussion here, and Mr. Harper insists on having a discussion, whether this deal was better or worse than an unconditional return to work.

The master executive counsel voted against an unconditional return to work before the negotiators went to negotiate.

And that's simply part of the problem of having--

Unknown Speaker: --I think you've answered the question Mr Gold.

Mr. Gold: --Okay.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The OYEZ Project

Featured:

Master, Mates & Pilots v. Brown - Oral Argument

Fri, 09 Jan 2009 14:49:39 +0000

Case:

Master, Mates & Pilots v. Brown

Media File:

89-1330_19901127-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of W. Michel Pierson

Chief Justice Rehnquist: We'll hear argument first this morning in No. 89-1330, the International Organization of Masters, Mates & Pilots v. Timothy A. Brown.

Mr. Pierson.

Mr. Pierson: Mr. Chief Justice, and may it please the Court:

This case involves the interpretation of Section 401(c) of the Labor Management Reporting and Disclosure Act, which places a duty upon unions to distribute, on behalf of candidates for union office, campaign literature upon their reasonable requests.

In posing the issue of how to determine what is reasonable request, the case raises issues involving the competing policies underlying LMRDA, which are the furtherance of union democracy and the prevention of unnecessary interference with the internal affairs of unions.

We submit that the holding of the Fourth Circuit, which held that the MM&P's election procedure was not entitled to consideration in determining whether Respondent's request to distribute literature was reasonable, not only unduly impairs the MM&P's right to govern its own affairs, but also ultimately is contrary to union democracy.

The case arose in the summer of 1988 when Brown, stating that he wished to be a candidate for president in the upcoming election of MM&P officers, made a request to the union to be permitted to disseminate literature prior to the convention, which was scheduled for August of 1988.

The union denied the request based upon its longstanding election procedure set forth in its constitution, which provides that the right to mailing begins only when the ballot committee of rank-and-file members that runs the election is elected at the convention.

Brown brought suit under section 401(c).

The case was heard 2 weeks later on a motion for temporary restraining order, and the district court held in favor of respondent.

The court not only held that the focus should be on whether the request was reasonable, but that the rule itself was unreasonable.

The case then went to the Fourth Circuit, which affirmed, expressly distinguishing precedent from other circuits, and the case came to this Court on petition for writ of certiorari.

Now, in determining how to construe section--

Unknown Speaker: Mr. Pierson, I take it that the court of appeals did not reach the question of whether the district court was correct in finding the union rule unreasonable?

Mr. Pierson: --It did not.

The Fourth Circuit's opinion speaks only in terms of the legal issue, finding that it should consider--

Unknown Speaker: And if we thought the rule were unreasonable, I guess we would--

Mr. Pierson: --Well I, I submit that this is not the proper forum to determine the reasonableness--

Unknown Speaker: --You think it should be remanded--

Mr. Pierson: --Yes.

Unknown Speaker: --to the court of appeals for that determination if, it has to be taken into consideration?

Mr. Pierson: That is correct.

It seems to me that the proper course would be to remand to the Fourth Circuit for further proceedings consistent with this Court's opinion, because one of the subsidiary questions involved, assuming the Court does hold that the union's rule is entitled to be respected--

Unknown Speaker: Well, apart from the rule, do you think there is anything unreasonable about the respondent's request to communicate before the convention?

Mr. Pierson: --Our position in this case is based solely upon our election procedure, and we contend that the request--

Unknown Speaker: Well, my question is do you think there is anything unreasonable about that request, apart from the union's rule?

Mr. Pierson: --If we were litigating this case in another union that did not have that provision in the constitution, then... well, let me back up for a moment, because this gets to one of the problems in the distinction between the Fourth Circuit's approach and the Third Circuit's approach, which is that a request is not reasonable or unreasonable in a vacuum.

It seems to me that it is reasonable or unreasonable in the context of the union's elections procedures.

So that I think a more appropriate answer to your question, Justice O'Connor, might be that it's not possible to answer the question of whether a request is reasonable or unreasonable, except as--

Unknown Speaker: Well, if the union didn't have a rule, I suppose it certainly is possible to answer that question.

Mr. Pierson: --If... that is correct.

Unknown Speaker: And my question to you is, absent the rule, is there anything unreasonable about the request?

Mr. Pierson: The... we do not take the position in this litigation that we... his request is unreasonable separate and apart from its relation to the union's rule.

Unknown Speaker: What level of scrutiny do you think we need to apply in evaluating the union's rule, if it has to be taken into consideration?

Mr. Pierson: It seems to me that the Court should look at the circumstances of the promulgation of the union's rule, the circumstances of the union's election procedure, that is, whether there has been abuse of the type that LMRDA was intended to combat, entrenched incumbents who abused channels of communication with the membership, and also--

Unknown Speaker: Well, is it a level of scrutiny of rationality, in effect?

I mean, is there anything in particular about this scheme that requires any special level of scrutiny?

Mr. Pierson: --Well, I would say that rationality is one aspect of it, but I would also say that if there is a showing that the rule was adopted solely to impair the rights of candidates to communicate with the membership... now, I suppose that's an aspect of rationality because it goes to the question of what were the reasons for adoption of the rule and the circumstances of the adoption of the rule.

But I would not see any reason for heightened scrutiny.

It seems to me that the basic rationality test would be adequate.

If we begin with the words of the statute, the statute speaks in terms of reasonable requests, and by fashioning that standard the statute imposes a duty upon unions to measure requests to determine whether they are reasonable or unreasonable.

In performing that duty, we submit that it is far preferable for the union to have a rule that governs all requests.

It eliminates any possibility of discrimination, it provides advance notice to all candidates of the conditions under which distribution of literature can be made, and it prevents manipulation of the election procedures by the incumbents in the granting or denial of requests.

So that in terms of the statute itself, the statute does not preclude the adoption of a reasonable rule, and therefore we must look at the policy underlying the statute to resolve this question.

Now, it is certainly true that one of the policies underlying LMRDA was the prevention of abuse by entrenched incumbents, and Congress passed LMRDA in order to further union democracy in the face of evidence that was presented to the McClellan Committee of abuse by entrenched incumbents in a sample of unions that the committee examined.

But the fact that that was one of the purposes of the statute does not necessarily say anything about the construction of section 401(c).

There is nothing peculiar about section 401(c) in terms of incumbents or insurgents.

In fact, the entire statute, all of LMRDA, was passed for this very reason, that is to prevent abuse by incumbents because of evidence that incumbents had abused their advantages in a number of ways: not holding elections, disenfranchising significant portions of the membership, everything to violence.

Nonetheless, the balance of LMRDA, the sections other than 401(c), make repeated reference to union rules and union constitutions.

In fact, throughout the statute there are no less than eight references to union constitutions.

The statute requires labor organization to adopt constitutions.

The statute provides that labor organizations may not impair members rights under the constitutions.

The election procedures themselves make repeated reference to union rules that regulate the election procedure.

One of the ways that Congress intended to combat abuse by entrenched incumbents was by requiring adherence to union constitutions and union rules of procedure, and that is apparent from the structure of the entire act.

So there is nothing peculiar about section 401(c).

Section 401(c) is not the only section that affects the rights of insurgents or the power of incumbents to preserve their position in office.

Unknown Speaker: Mr. Pierson, here we're talking about a very small fraction of what would be covered by union rules.

We're talking about reasonable request of any candidate to distribute by mail or otherwise, at the candidate's expense, campaign literature.

Since it's entirely at the candidate's expense and there is no monetary burden on the union, it's very hard for me to see how that could be an unreasonable request.

Mr. Pierson: Well, the... the union power to regulate the election procedure might affect campaign requests in a number of ways.

And it might affect campaign requests in a number of ways that could conceivably impose a burden upon one seeking union office.

It seems to me that it is not sufficient to say that the only question in construing section 401(c) would be will it benefit the candidate or not.

Unknown Speaker: Well, but, what... what burden would there be on the union?

Mr. Pierson: In this particular case, Your Honor?

Unknown Speaker: Yes.

Mr. Pierson: Well, this case is not simply about, from the MM&P's standpoint, Brown's request for literature.

Brown--

Unknown Speaker: Well, it is.

We may lay down a more general rule, but it very definitely is about Brown's request.

We decide the cases on the facts before us.

Mr. Pierson: --I know, but what I mean to say is this, that Brown was not the only candidate running for office in the 1988 election, and the presidential election was not the only election being held there.

The... the election procedures in the MM&P constitution govern elections for all offices, that is, all the vice presidents, the convention delegates, and the procedure was set up to govern all of those contests.

So that it may always be true in looking at a single request that one might say that granting this request will not burden the union.

That does not, however, contradict the fact--

Unknown Speaker: Well, what sort of... let's apply a [inaudible] rule that you have to... the only thing you can claim for yourself is what others could claim equally, without hurting anybody.

What hurt would come to the union if numerous candidates requested mailing information and mailing at their own expense?

Mr. Pierson: --Simply that it would impose a greater burden upon the union to grant those requests at a time before it has made the determination as to who is a bona fide candidate.

Unknown Speaker: Well, so... you're saying that, what, is it time spent by union employees that would be the burden?

Mr. Pierson: That's not... no, we're not saying that's the sole burden, Your Honor.

We are also saying that the union has an interest in ensuring that its literature distribution provisions are used only by bona fide candidates.

And that is one of the things that was specifically in the legislative history and resulted in the section 401(c) being passed in the way that it was.

Unknown Speaker: How do you define bona fide candidate?

Mr. Pierson: We would... the MM&P constitution requires that candidates meet a number of requirements at the time they are nominated in order to be eligible.

They have to... there is a continuous dues payment requirement, so that a member must have paid his dues continuously in advance for the 2 years preceding the nomination.

There is a requirement that a member serve under his license for a period of 180 days during the period.

Unknown Speaker: Well, but these candidates, people who don't qualify, will ultimately be filtered out at some stage of the proceedings.

I still don't see why, even if... if a person who perhaps isn't ultimately going to qualify for the nomination, if that person wants to circulate campaign literature at his own expense, what harm that does to the union.

Mr. Pierson: Well, it seems to me that there is an institutional interest in seeing that the right is not abuse.

Now, the Department of Labor regulations provide that the union is not entitled to censor campaign literature and it is not entitled to see campaign literature before it goes out.

So that if the... if there were no rule regulating the distribution procedure and we simply provided that anybody at anytime, regardless of how close it is to an election, could come in and request distribution of literature, then that would be a way that would harm the union's interest in limiting use of the distribution procedure to bona fide candidates.

Now--

Unknown Speaker: Well, you say, in other words, that only someone who can meet all the union's rules for nomination is entitled to have the campaign literature distributed?

Mr. Pierson: --I am saying that the rule in this case, because it provides for the distribution right at a time when the ballot committee, an independent organization of rank and file members, has determined who is a candidate, that it is reasonable to draw the line there.

That a line that is drawn in terms of the union's election procedure is more reasonable than... what I'm saying is we're not talking about an arbitrary rule that somebody made up just to draw a bright line.

Now, I am saying that that is one of the interests that the union has in enforcing its rule.

Another interest that the union has in this case is in enforcing a rule that was not made up by the officers, but was adopted as part of the union's constitution that was approved by the entire membership and is part of a detailed set of election procedures for regulation of the election and fits in with those.

So that it really is a matter of extracting from that detailed procedure this one rule and carving it out, and that denies the interest that the union has in enforcing the entire election procedure.

Unknown Speaker: Mr. Pierson, I... do you... is it your position that it's not even a close question, that the language couldn't be interpreted the way Mr. Brown wants to interpret it?

Mr. Pierson: The language of the statute?

Unknown Speaker: Yes.

I mean, it does say all reasonable requests.

It just says shall comply with all reasonable requests of any candidate, and the difference is you say that means reasonable in light of the union rules, and Brown says it means just all reasonable requests, union rules or not.

Now, I will concede that your interpretation is plausible.

Is the other one not even plausible?

And if it is... just so you'll know where I'm leading you, if it is plausible--

Mr. Pierson: I appreciate that.

[Laughter]

Unknown Speaker: --why shouldn't we take the Secretary's interpretation, which I... which I gather has been consistent, and why shouldn't we simply apply Chevron to his interpretation of this provision?

Mr. Pierson: Well that requires us to answer the question of what is the Secretary's interpretation.

The Secretary wrote a letter at respondent's request concerning the request that was made in this case.

That letter was not necessarily compelled or required by anything that's in the Secretary's regulations.

In fact, the Secretary's regulations simply say that a union may not adopt a rule forbidding all requests.

Well, that seems apparent from the express language of the statute itself that the union must grant reasonable requests.

That the union should give advance notice to all candidates of the conditions under which distribution should be made... will be made, which we submit furthers the idea of having a rule in order to give advance notice, and provides certain things regarding bona fide candidates, which regulation is based upon the Yablonski case, in which Yablonski needed the support of people in order to be nominated.

And the Secretary, based on that, phrased a regulation that said that a candidate may distribute literature before nomination.

So that we submit that there is no consistent interpretation that governs the precise issue in this case.

Unknown Speaker: The Secretary has filed a brief here that supports Mr. Brown.

Do you deny that the Secretary has any business giving an interpretation of that provision, if he is asked.

It comes within his administration, doesn't it?

Mr. Pierson: It does come within his administration, Your Honor.

But I submit that the Court may determine the policies underlying the statute, and those policies have been determined and applied and identified by this Court in a number of cases, beginning with Calhoon v. Harvey, continuing through the Glass Bottle Blowers case, and all the way up through Sadlowski.

And that the Court has clearly identified the policies, and this is not the date at which that history should be rewritten.

The competing policies of LMRDA are clear.

Unknown Speaker: Mr. Pierson, one of the points made on the other side was that Mr. Brown wanted other potential candidates to know in advance that he was serious in running himself, so that others in effect might stand by and not declare themselves, as long as they knew someone who espoused their position was going to run.

Do you take exception to that as a factual claim?

Mr. Pierson: That is certainly a possible interest of a candidate--

Unknown Speaker: All right.

Mr. Pierson: --in requesting a right to distribute literature.

I--

Unknown Speaker: So that the... I'm sorry.

Mr. Pierson: --I do take exception to any factual findings in this case because of the nature in which the case was tried in the district court and the fact that the district court would not permit us to put on evidence.

But I don't take exception to that factual possibility.

Unknown Speaker: Okay.

All right.

The right, then, to circulate literature at the time Mr. Brown wanted to, would tend, or have a tendency to limit the possible field of candidates who come forward to challenge the incumbents, then.

That would be fair to say, wouldn't it?

Mr. Pierson: That would be fair to say, Your Honor, yes.

Unknown Speaker: So, the upshot of those two points is that if Mr. Brown and others like him are allowed to come forward and circulate literature at the time that they want to do it, there is reason to believe that challenges to incumbent union leadership will be stronger challenges, and conversely, that the union leadership would have an interest in preventing challenges of such strength by the very rule that we have in this case.

Isn't that fair to say?

Mr. Pierson: It is fair to say that the incumbent leadership would have an interest in denying such challenges.

Unknown Speaker: They want a scattering of candidates rather than one or two strong candidates against them.

Mr. Pierson: But we... where I take exception to your question, Justice Souter, is when you say

"by the very rule that was applied in this case. "

We submit that what this case is about is the fact that this rule was not adopted by the incumbents, but is part of the union constitution.

And that the very reason that we want this rule enforced is to prevent manipulation by incumbents.

Unknown Speaker: But it's still the case, isn't it, that the... that however adopted, this rule tends to favor incumbents, as against the rule, or lack of rule if you will, that the petitioner would have?

Mr. Pierson: Any type of rule might favor incumbents or favor insurgents.

Unknown Speaker: But this one in fact has a definite tendency to do that, doesn't it?

Mr. Pierson: I don't know that that's a finding or a conclusion that the Court can reach upon the state of this record.

It seems to me that there is really insufficient factual development to say that this rule was adopted for or has that effect.

Unknown Speaker: Well, I'm not saying that it was necessarily adopted with that motivation on the part of any individuals or segment of the union, but it seems to me that that is its natural tendency, and I'm not sure that we need fact finding for that purpose.

Mr. Pierson: It seems to me that it also could be said that any rule that places any restriction upon the right to distribute literature could favor incumbents.

If you take respondent's argument to its greatest extent, which is done in one of the amicus briefs, I think, any rule that would prevent an incumbent from distributing literature 8 years in advance... I mean an insurgent from distributing literature 8 years in advance would have an effect that might favor incumbents.

The statute, I submit, is not to be construed solely in terms of that, but in terms of the entire question of whether the rule promotes democracy or subverts democracy.

One element in that is whether there is an undue advantage afforded to incumbents by virtue of the union procedure.

But that is only one element, and I submit is not the only element that the Court should take into account.

And it does seem to me that this would be... the advantage of the union's test would be that... the first question would be is the rule unreasonable.

We have never said that any rule should be enforced, regardless of whether it is reasonable or unreasonable.

Our position is we start with whether the rule is reasonable or unreasonable, and then it's up to the candidate to make some showing, a factual showing, that the rule either was adopted for the purpose of favoring incumbents, or that the rule has the effect of inhibiting democracy within the union, or that there is something else that is defective about the circumstances of promulgation or application of the rule.

Unknown Speaker: Mr. Pierson, you carefully leave out

"or the rule has the effect of favoring incumbents. "

because I take it in your response to Justice Souter you take the position that any rule favors incumbents.

Is that... are you really making that argument?

I don't... it seems to me if the rule simply said in the language of the statute, the union shall distribute the literature at the candidate's expense whenever a reasonable request to do so is made.

That wouldn't favor incumbents.

Mr. Pierson: Well that, that would have other problems, though, because such a rule would then place in the hands of the incumbents, that is the union's officers, the duty of determining on a case-by-case basis whether a request was reasonable or unreasonable.

Unknown Speaker: Well, what's so hard about that?

I mean, if he's not a bona fide candidate, you don't distribute the literature.

If it is, and there's no particular problem, you distribute it.

I don't see the problem.

Mr. Pierson: Well, it does seem to me that no one in this case, including the respondent and the United States, has contended that there are not some unreasonable requests, that the statute does--

Unknown Speaker: Sure, I say there are, but you don't have to distribute then.

But you have to decide whether the request is reasonable.

The statute compels you to do that.

Mr. Pierson: --The statute compels you to do that.

Unknown Speaker: Right.

Mr. Pierson: The statute does not tell you how to do that, but the statute does compel you to do that.

Unknown Speaker: That's right.

Mr. Pierson: Yes.

Unknown Speaker: I don't understand your point.

It seemed to me you were saying to Justice Stewart... Justice Souter, that any rule would favor incumbents.

I don't follow that.

Mr. Pierson: Well, what I was saying was that there are a number of ways in which a determination could favor the interest of an insurgent candidate, but that democracy is not simply equivalent to whether the insurgent candidate is hindered or helped.

And that has been made the sole constructional factor in the statute by the approach that has been taken by the respondent in this case.

That it's simply a question of does this help the insurgent, and if so, that is the way the statute has to be construed.

Unknown Speaker: I don't understand them to... arguing that.

I thought if they say it's a perfectly neutral rule, that either incumbents or non-incumbents can make reasonable requests, and when a reasonable request is made it shall be granted, regardless of whether it's an incumbent or an insurgent.

I don't think it has to be pro-insurgent.

Mr. Pierson: Well, they are saying that any rule... that any interpretation of the statute that gives any sway to a union rule necessarily favors incumbents.

They are saying that the focus cannot be on the union rule, and that if it is it favors incumbents.

With the Court's leave, I respectfully wish to reserve the remainder of my time for rebuttal.

Unknown Speaker: Very well, Mr. Pierson.

Mr. Levy, we'll hear now from you.

Argument of Paul Alan Levy

Mr. Levy: Mr. Chief Justice, and may it please the Court:

The question here is this.

In deciding whether a union has satisfied its statutory duty to, in the words of section 401(c), comply with all reasonable requests from any candidate to mail campaign literature at the candidate's own expense, should a court focus, as the lower courts did and as the Secretary of Labor agrees they should, on the question whether the request itself is reasonable in light of all the circumstances, or does the case stand or fall on a determination of whether the request satisfies a union rule, and whether that union rule is reasonable in its general application.

Unknown Speaker: Mr. Levy, in your first suggestion as to how the rule should be... the statute should be interpreted, you say that is the request reasonable in the light of all the circumstances.

Would one of the circumstances be the existence of the union rule?

Mr. Levy: I think there are circumstances in which the existence of a union rule is something that it would be useful for the court to consider, and indeed, although the district court focused squarely on the reasonableness of the union rule, even the court of appeals took note of the union rule and also noted that it had an adverse effect on the ability of insurgents to run for office.

Unknown Speaker: I mean, supposing there's a request for literature distribution as of July 1, and the union rule says we're not going to distribute any until July 10, and the election is a year away.

That might affect the reasonableness of the request, might it not?

Mr. Levy: I don't know that the existence of the rule would affect the reasonableness of the request.

It may be that one would look to the circumstance of how far away the election is in determining the reasonableness of the rule, the reasonableness of the request, although I would say, I would argue that the fact that the election is a year away would not necessarily make the request unreasonable, regardless of the existence of the union rule.

But I don't think, in square answer to your question, that the mere existence of a union rule on that question would provide much if any assistance to the court in deciding whether the rule was reasonable.

On the other hand--

Unknown Speaker: What if the union rule says requests to distribute... it's a big job... requests shall be in writing to prevent any confusion, and a particular candidate comes up and orally tells the president of the union I'd like to have this mailed out?

Mr. Levy: --It seems to me that that kind of a rule goes to the union's administrative burden in dealing with a request and possible ensuing litigation--

Unknown Speaker: Right.

And so do some time rules, the one that the Chief Justice just posited.

We don't... we want to make as few mailings as possible, and--

Mr. Levy: --We want to make as few mailings as possible, I would argue, is not an admissible reason for not making particular mailings.

On the other hand, if--

Unknown Speaker: --I see, so some rules are okay and some rules are not okay?

You can have rules that limit... that limit the request.

You would have to comply with the rule that it be in writing, even though the request is otherwise reasonable, it would have to comply with that rule?

Mr. Levy: --I believe that with respect to that hypothetical, that given the union's need to be sure... I don't know what the union's argument for that particular rule would be.

Unknown Speaker: So it depends on how good the union's argument is.

So if the union has a good enough argument for a time limit, then that would be all right too?

Mr. Levy: No, our position is this.

That if the union can point to particular administrative burdens which have to be satisfied with respect to any rule, I would not have the Court let the union decide whether there are such administrative burdens.

That, it seems to me, is a question for the Court to decide itself in judging the reasonableness of the request.

But if we hypothesize that there's an administrative burden, for example, an amount of time to put out a mailing, so that the union says we need a request 2 days in advance.

And the union says this is the way we are going to deal with the administrative burden, and there are a variety of ways we can deal with the administrative burden, each of which makes it somewhat more difficult or delays the making of the request.

And the union announces in advance, this is the way we are going to do it.

And the candidate ignores the union's announcement in advance that this is the way we're going to handle this kind of problem, I would allow the union, perhaps, to make the judgment that this, as opposed to that equivalent way of meeting the burden of making requests, is appropriate.

And the fact that the union had announced its procedure in advance would be of assistance to the court ultimately in deciding whether the request was reasonable.

Now, I'm not sure how I would apply that to the particular rule that you hypothesize in your question, because I'm not sure what the administrative burden argument is that the union... in either case, whether it's a reasonable rule or a reasonable request, the court is going to have to decide is the request reasonable.

But I'm not sure what argument the union would make in favor of that particular procedure, whether it be called the union rule or otherwise, in advance of making a request.

I don't know if I have answered your question.

Unknown Speaker: I don't know either.

[Laughter]

Mr. Levy: One point before I turn to how I would answer the question that I posed at the beginning with respect to the factual posture of the case.

We filed the motion for a preliminary injunction and a motion for a temporary restraining order.

We put in affidavits; they put in affidavits.

At the beginning of the preliminary injunction hearing... and I might add one of the points made in the affidavit which is uncontradicted to date was that one of the reasons Brown wanted to do his mailing at the time he did was to tell other people that he was running.

At the beginning of the hearing the union said we may be able to solve... resolve this case on the record as it is, but if there are factual conflicts we reserve the right to put on evidence.

The union never disputed that fact, it never disputed the fact that the union, the incumbents had used the union newspaper, not abused it, just used the union newspaper to communicate their views and exclude the views of others.

So we don't think that to the extent that the Court finds it necessary to get to the question of whether the rule is reasonable, we don't think that the state of the record is a bar to the Court's deciding the case on the record as it stands.

The union also, although Mr. Pierson, I don't know whether he finally answered your question.

It certainly attempted to equivocate in answer to Justice O'Connor's question, the union has never argued in this case that the request is unreasonable except insofar as it contradicts a rule which it regards as reasonable.

We think that the language of the statute decides this case.

The statute does not require members to comply with, quote, "reasonable union rules".

It requires unions to comply with all of a candidate's reasonable requests.

We think this language of the statute could not be clearer, particularly in light of the fact that there are, as Mr. Pierson points out, other parts of the statute which do refer to reasonable union rules and which subject rights to reasonable union rules.

Congress chose not to do so here.

The union makes a variety of arguments about why it would be a good idea to focus on the reasonableness of the union's rules, but the fundamental objection to that argument is that that is not what Congress said to do.

And what they really want the Court to do is to rewrite the statute in that respect.

Moreover, focusing on the reasonableness of the request rather than on the union's rule is also supported by Congress' purpose in passing this part of the statute.

Congress recognized that union candidates have special problems in communicating with the voters, and it enacted section 401(c) to help candidates overcome those disadvantages.

And to understand why it's appropriate to look at the reasonable... inappropriate, excuse me, to look at the reasonableness of the union rule in deciding when the right to do a mailing should be limited, it is important to appreciate the serious communications problem that an insurgent candidate faces.

Unlike a public election, the complete list of voters is secret.

Only the union has it.

And unlike a public election, the union leaders, in addition to being in constant contact with the membership in the course of their duties, also control the union newspaper, which they use to communicate their views on union affairs and to trumpet their successes on the members behalf, which they do year in and year out.

Union newspapers do not provide campaign coverage, as the public press does with respect to public elections.

And, at least in most unions, a candidate cannot buy advertising space in a camp... in a union publication.

Finally, the union members are widely dispersed through the general population.

Admittedly in this union the problem of dispersion is somewhat extreme, but the problem exists to some extent in every union.

And to reach all the voters by... through the public media, a candidate would have to buy space or time in media which are disseminated to the general public, and particularly in a national election, that would be a prohibitive cost.

So it can--

Unknown Speaker: All of that goes to show that this is an unreasonable union rule.

Mr. Levy: --No.

It goes to show that, but it also goes--

Unknown Speaker: Isn't that your real complaint here?

Given, especially given the nature of your union, which, many of its members being off at sea for months at a time, that this is an unreasonable rule?

Mr. Levy: --As we argued in opposing cert in this case, this case can be disposed of on the ground that it is a patently unreasonable rule, and maybe you should wait for a better case to decide this question of whether you look at the reasonableness of the rule or the reasonableness of the request.

But the points I am making also go to the question of how you should construe the statute.

What we're arguing is that because section 401(c) was a remedy for the problem that I have just described, it should be construed in a way which helps to even the playing field.

Adoption of the union's approach, we submit, would make it far more difficult for union members to exercise the right to do campaign mailings.

And there are three reasons why that is so.

First, the union concedes that its approach establishes a presumption that the union's rule is proper, and it is up to the candidate to establish that the union's rule is unreasonable.

So under the union's rule, approach, which they set forth in their reply brief at page 11, some requests which are otherwise reasonable could be denied because the union has a rule which is reasonable in its general application.

The fact that a particular candidate has particular needs could not be considered.

And so the question is whose interests should receive deference in the close cases, which we submit this is not.

In the close cases, whose interests should receive deference?

It's close cases where deference makes a difference.

Should it be the interests of the union leadership in denying a mailing, or should it be the interest of the candidate in having it done?

And what we argue is that because it is so clear that this part of the statute was meant to favor challengers by providing them with a vital means for overcoming the advantages of incumbency, and because the market provides a strong incentive for candidates not to make unreasonable requests.

They have to pay for the mailings, so they're less likely to make a request for mailing where they don't really need it.

It is most consistent with the congressional purpose in those circumstances to tip the balance in favor of the challenger, and hold that it is the challenger who has the power to make any request within the range of reasonableness, rather than that the union has the power.

Unknown Speaker: Mr. Levy, the Secretary says that she is entitled to deference in interpreting the statute, and yet one of her regulations says that in order to avoid charges of disparity of treatment among candidates, it is advised that a union inform all candidates in advance of the conditions under which distribution will be made, and promptly advise them of any change in those conditions.

Now, does that, in your view, enable unions to establish a range of conditions that have to be considered in evaluating the reasonableness of a request?

Some of them might include the things mentioned by the Chief Justice, for instance, 2 days' notice so we can assemble a list, or, as Justice Scalia suggested, in writing.

And maybe another could be payment in cash in advance of the mailing of the cost that we determine it will entail.

Now, are those things subject to union rule, if you will?

And must those things be considered in evaluating the reasonableness of the candidate's request?

Mr. Levy: Let me answer that question in two ways.

First with respect to how I understand the Secretary's rule and, second, a more general response.

I understand the Secretary's regulation to say that unions, to the extent that they have established procedure, should provide notice of those procedures.

But the Secretary does not anticipate fixed, unchanging rules, because the very same regulation says, and if you change the procedures, be sure you send out notice.

So it doesn't... the Secretary obviously doesn't anticipate a fixed, unchanging rule, but rather procedures--

Unknown Speaker: Well, that might mean if you change your rule, let us know.

Mr. Levy: --The second point... the second point is that, with respect to the kinds of procedures or rules, if you were, that you are describing, those kinds of rules, because they deal with administrative burdens which have to be handled some way in connection with any request, given the statutory, for example, requirement of payment for the mailing, my arguments about adopting a non-deference to the union rule approach because it would disserve the purpose of the statute would not apply to those kinds of rules.

But with respect to the rule which says you simply can't, no matter how much notice you give us, do a mailing at a certain amount of time before, more than, say, 10 days before the ballots go out, or the few days which are allowed by the current union rule.

With respect to that kind of rule, the argument that I make fully applies.

I don't know if I--

The second problem with the union's approach is that every time a union member wanted to challenge the denial of a mailing request he would have to show that the union's system with respect to mailing requests as a whole was unreasonable, or he would have to show that the rule had been misapplied, subject, at least according to the union, to the rule that you defer to the incumbent's interpretation of their own constitution.

Now, especially because the union member has to hire his own lawyer... the union, of course, is defended by union counsel at union expense... it would be very difficult to make that kind of proof in the context of a preliminary injunction hearing, with the election looming, these burdens would make it difficult, in our judgment, for the court to, in Senator Javitz's words, act and act in time, except in the most egregious of cases, which again, I would emphasize we think this is.

So that's another way in which the union's approach, focusing on the reasonableness of the rule, disserves Congress' purpose of helping challengers to make mailing requests when they need them.

Unknown Speaker: You would rather have the challenger fight each request case by case instead of being able to proceed under a rule which, if he complies with, he knows that his request will be deemed to be reasonable?

Mr. Levy: There is going to be a rule in either case.

Unknown Speaker: Why is there going to be a rule?

Mr. Levy: Whether it is--

Unknown Speaker: If I were... if I were union management with the bad motivations that you posit, I simply wouldn't have a rule, and say okay, you want to do it this way, we'll judge case by case whether it's reasonable.

Go hire a lawyer each time.

Mr. Levy: --There is going to be a rule in either case because the rule is going to be set by the union leadership, or the rule is going to be set by common law adjudication of all of these cases, or the rule is going to be set... the rule of what is reasonable is going to be set perhaps by the Secretary's regulations.

The question is do you give deference to the union in adopting a particular rule.

If a union wants to cabin the incumbent's discretion, it can do that.

That is to say prevent the incumbents from enforcing or adopting a rule which would make requests otherwise reasonable... excuse me, requests otherwise unreasonable, permissible.

The union could do that.

What the union can't do is use the power to make rules, at least under our approach, to prevent candidates from making requests which would otherwise be reasonable.

Unknown Speaker: But don't you want to concede that the rule should be given deference so long as the rule does not have a tendency to disfavor insurgents?

Mr. Levy: I don't know that it's the tendency to favor... to disfavor insurgents that's necessary, because if that's the rule, then every time somebody comes in with a challenge to your denial they have to prove the tendencies are the general rule in the context of a preliminary injunction hearing.

Unknown Speaker: Thank you, Mr. Levy.

Mr. Feldman, we'll hear now from you.

Argument of James A. Feldman

Mr. Feldman: Thank you, Mr. Chief Justice, and may it please the Court:

The position of the Department of Labor in this case is that section 401(c) of the LMRDA means what it says when it states that unions, quote,

"shall be under a duty to comply with all reasonable requests of any candidate to distribute by mail or otherwise, at the candidate's expense, campaign literature. "

One thing I'd like to point out that is something as an aside to the argument so far is that that language was in the original version of the LMRDA that was reported out of the Senate Committee.

It was later embodied by Senator Javitz with other language that he added that became the current section 401(c).

But the particular language that is at issue in this case was from the original bill that was reported out of committee.

Unknown Speaker: Mr. Feldman, I hope in the course of your remarks you will tell us exactly what it is we need to defer to the Secretary on, and whether there is room in this scheme for union regulations of such things as all requests will be made in writing, they will be made 2 days in advance of the date for mailing, and it will include... you will have to pay us in cash or postal money order, or something of that sort, in advance.

Mr. Feldman: Okay, let me take the first question first.

The Secretary's view that the focus of the statute, as the statutory language indicates, is on the reasonableness of the request, is a consistent view that, as the materials that we have lodged with the Court show, dates back as long as 1960.

Now, it's true that at that time the particular issue of whether a reasonable rule can trump an otherwise reasonable request had not yet arisen.

But when that particular application of the general principle arose, starting in the mid-1980's, the Secretary took the position, for instance in the Third Circuit Donovan against Carpenter's case, that the issue, the ultimate issue, the one and only test that section 401(c) imposes is whether the rule... is whether the request is reasonable.

And then it indeed formed the basis of letters that the Secretary wrote in this case and the briefs that we filed in this Court.

Now that position... really the only substantial argument that that is not a clear position is that there is another regulation, 29 CFR 452.67, that says, quote,

"It is advised that a union inform all candidates in advance of the conditions under which distribution will be made. "

First of all, that doesn't speak specifically of rules.

And secondly, the purpose of having unions give such advice to candidates, it can serve a number of different functions under the statute.

For one thing, and I think that's extremely important, it can provide a safe harbor to everybody involved to know under what circumstances a candidate can get--

Unknown Speaker: Well, the fact is it's desirable for everyone to know requests have to be made in writing or not, they have to be accompanied by payment or not, they have to give at least X number of days' or hours' notice or not.

That's important, isn't it?

Mr. Feldman: --Yeah, well--

Unknown Speaker: Now, does the Secretary leave room for a union to establish those administrative requirements by rule?

Mr. Feldman: --I think the answer is yes.

In other words--

Unknown Speaker: And if so, and a court is faced with, or a union, with deciding whether a request for campaign mailing is reasonable, should it take into consideration the existence of that kind of rule?

Mr. Feldman: --I think the existence of the rule can be helpful in a number of different ways.

First of all, insofar as there are genuine administrative constraints that a union is operating under, and if the union... if the union rule points attention to that... to those constraints, then indeed a court will certainly take notice of those constraints and will take the rule into account in judging whether a particular request is reasonable.

Unknown Speaker: And the Secretary thinks that's appropriate?

Mr. Feldman: Yes.

Unknown Speaker: And is not asking us to not interpret it... well, is not telling us that those kinds of rules may not be considered.

Mr. Feldman: In fact we are not saying... we are saying all rules can be considered.

The question is what exact way, and how are they, do they fit into the calculus.

Our answer to that is, first of all they can provide a safe harbor to let people know how they can get requests granted.

Secondly, they can also... there is nothing in the statute which prohibits a union from granting requests that a court might find were unreasonable, so long as it operates on a non-discriminatory basis.

So unions--

Unknown Speaker: Let's take a concrete case.

Suppose, somebody gave this instance earlier, of somebody who wants a mailing sent out on July 1, and the union rule says we won't send out anything until July 5th.

Mr. Feldman: --I think--

Unknown Speaker: You know, I'd say, gee, that's pretty unreasonable.

You know, the union says we'll send it the 5th, you want us to go through this whole separate mailing just for 4 days' worth.

Don't be unreasonable; let us send it out on the 5th.

Isn't that... can you use the rule that way?

Mr. Feldman: --I think... well, in each case the question is whether the request was reasonable.

If the election were being held on July 6--

Unknown Speaker: Well, the request is thoroughly reasonable if the rule doesn't exist, but given the rule, it seems unreasonable.

Mr. Feldman: --The question... I think that first the question is whether the... if the election were held on July 6th, such a rule--

Unknown Speaker: No, no, no.

The election is in the fall.

It's in October.

[Laughter]

Mr. Feldman: --If you're talking about the election--

Unknown Speaker: The election is in October.

He wants it mailed on the 1st.

Mr. Feldman: --Well, if there is a genuine administrative constraint that the union is operating under--

Unknown Speaker: No administrative constraint--

--I don't think you're answering these questions, Mr. Feldman, either from Justice O'Connor or from Justice Scalia.

You have been asked twice is the union rule a factor that may be taken into consideration in deciding whether the request is reasonable.

Now that can be answered yes or no.

Mr. Feldman: --The answer is yes.

Let me... let me try to explain it this way.

Insofar as... the question is whether the... the question in each case is whether the request is reasonable.

Now, if the union rule, for instance, serves a purpose of publicizing a administrative constraint that the union might be operating under, and if there is some reason why the union... well, is the question whether... I'm not sure I understand the question.

Unknown Speaker: There's no constraint.

It just has... the union doesn't want to have to come in and prove a constraint.

It just says we... it's easier for us, we can live with the... we could do the July 1, yes, of course.

But it's easy for us to know that we get geared up for July 4th.

And this fellow is just, you know, for whatever reason, his horoscope or anything else, he says July 1 is when the mailing has to go out.

And you, if I understand what you have been saying to both me and Justice O'Connor, the rule in and of itself cannot be taken into account.

It is only the constraints that justify the rule that can be taken into account.

Isn't that what you have been saying?

Mr. Feldman: That is right.

Unknown Speaker: Why don't you say it clearly?

Mr. Feldman: Okay, but with one exception.

That the union, occasionally there may be rules that by publicizing a certain constraint may make the difference between the judgment of whether a request is reasonable or not.

For instance, we give the example in our brief of where a union maintains its membership lists on cards, and needs to take those cards out to send out the election ballots during a certain period of time.

Now, in the absence of a rule it may be perfectly reasonable, where no one knows what that time period is, for a candidate to request that a mailing be done during that time, especially if it's close to the election.

Where the union has a rule, publicizes that fact, in that case the candidate reasonably wouldn't rely on getting his mailing done during that period and the request may be unreasonable.

So the union can serve... the rule can serve the function of publicizing a condition that exists, and therefore affect the reasonableness of a request.

But in each case the ultimate question is whether the request is reasonable, and in each case, there is no case... well, there is no case in which a request which is reasonable is made unreasonable just by the fact that a union has adopted a rule.

It's, the fact that it's publicized may make a difference.

Unknown Speaker: Well, if we determine that you look first to the reasonableness of the request, that's the focus of the statute, and that one factor in the calculus of reasonableness is to look at the union rule and to look at its reasoning and its purpose, if that's what we hold, do we have to remand in this case?

Mr. Feldman: I am not sure... if you agree with us that the--

Unknown Speaker: Well, as I understand the court of appeals, it said we look just to the reasonableness of the request.

We don't look to the reasonableness of the rule, even as one of the determinants in evaluating the statutory sufficiency of the request.

Now, if we disagree with that and say that the rule is one of the factors you look at in this calculus of reasonableness, then don't we have to remand?

Mr. Feldman: --I don't think you have to remand, and I guess I also don't read the court of appeals' opinion to quite have said that.

I think the court of appeals said the ultimate question is the reasonableness of the request, and there is no doubt that in this case that request was reasonable, no matter what factors would have been shown about the rule and its application in other cases.

And therefore there is nothing left to decide on a remand.

And I think that is perfectly consistent with what the district court did.

In fact, the district court, I thought, summarized the issue up clearly.

It said,

"Although a union certainly may, indeed should, adopt a rule known to all candidates in advance setting forth the terms and conditions under which mailings will be made, in evaluating the validity of the rule a union must inquire not simply whether the rule may be said to be reasonable, but whether its application results in the rejection of a reasonable request. "

Unknown Speaker: Thank you, Mr. Feldman.

Mr. Pierson, do you have rebuttal?

Rebuttal of W. Michel Pierson

Mr. Pierson: Yes, Mr. Chief Justice.

The argument in the district court in this case, it is clear from a review of the transcript, proceeded solely upon the legal question of how to determine whether a request was reasonable, that is by reference to the rule or otherwise.

And in fact, the first thing that the union tried to show at the time of the hearing was that respondent had made other communications with the membership and had other channels of communication, and then the case immediately went off on the discussion of how to construe the statute.

We therefore submit that if this Court should agree with our position a remand is necessary, and that this Court cannot determine the reasonableness of this rule upon the face of this record.

With respect to the test in terms of the statute itself, it seems to me that two things are apparent.

Number one that, and I do not mean to equivocate in answer to a question, but the argument that there is an intersection between reasonable rules and reasonable requests, and that applying the union's approach will result in the denial of reasonable requests because of the rule, really is not the way that the section intends.

What I mean is this, that it is impossible to determine whether a request is reasonable or unreasonable without looking at the context of the union's election procedure, and therefore it is meaningless to talk about whether a rule is reasonable in the abstract.

And that what the district judge did in this case was meaningless, because he said I find per se that this request is reasonable.

Second, it also seems apparent that any rule that can be posited could work a disadvantage to an insurgent candidate, regardless of whether it's a rule that deals with the timing of requests, regardless of whether it's a rule such as in the Provision House case from the Ninth Circuit that says that requests have to be in by a certain date in order to mail literature.

Any rule, no matter what the reasons for that rule, may have some impact upon the candidate's ability to conduct a campaign.

That, however, is not the only factor in determining whether the statute is complied with or not.

And the test we propose that looks at the rule first, that permits the candidate to show that it is unreasonable, based upon a variety of factors, effectuates not only the union's reasonable interest in governing its own elections, but also the candidate's interest in that he permits... it permits him to show that somehow there has been abuse or somehow the rule does unfairly impede democracy.

Chief Justice Rehnquist: Thank you, Mr. Pierson.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Breininger v. Sheet Metal Workers - Oral Argument

Fri, 09 Jan 2009 14:49:21 +0000

Case:

Breininger v. Sheet Metal Workers

Media File:

88-124_19891010-argument.mp3

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Argument of Francis J. Landry

Chief Justice Rehnquist: We'll hear argument next in Number 88-124, Lynn L. Breininger v. Sheet Metal Workers International Association Local Union No. 6.

Mr. Landry, you may proceed whenever you are ready.

Mr. Landry: Mr. Chief Justice, and may it please the Court:

This case involves a challenge by the Petitioner to a judgment of the district court in the northern district of Ohio, which was affirmed by the Sixth Circuit, dismissing a two-count complaint brought by the Petitioner against this labor union.

The first count was for breach of duty of fair representation.

The second count was brought under the Landrum-Griffin Act.

The district court dismissed the case on a motion for summary judgment and dismissed it on jurisdictional grounds inasmuch as because the case involved allegations that the Petitioner was discriminatorily refused job referrals on an out-of-work list, that the case was... preempted by the National Labor Relations Board exclusive jurisdiction under San Diego Building Trades v. Garmon.

The district court also held the Landrum-Griffin Act was preempted similarly under the Garmon doctrine.

The Sixth Circuit affirmed on the jurisdictional basis and additionally added that, because the out-of-work list was available to use by members of the union and non-members, it could not constitute discipline under Teamsters v. Leu, because non-members also could use the out-of-work list.

This was an issue which was not reached by the district court.

The duty of fair representation, we believe, is certainly involved in this case.

The duty developed over 40 years ago in response to a need by the individual members of the union to have redress for arbitrary union activity.

In Vaca v. Sipes in 1987, this Court also embraced the duty of fair representation again, subsequent to the National Labor Relations Board recognition of the duty of fair representation as an unfair labor practice in Miranda Fuel.

The duty of fair representation is a bulwark for redress by individual union members for arbitrary union conduct, and we believe that, because there is a congressional grant of exclusive representation authority to the individual labor unions, that the constitutionality of this grant would be called into question if the individual employee, the individual member of the union, were deprived of the right to a judicial forum to redress arbitrary conduct.

Thus, we see no reason to restrict the availability of the duty of fair representation, and any remedy for redress of discriminatory job referrals in this context ought to be... the jurisdiction ought to be concurrent with that of the National Labor Relations Board.

Additionally,--

Unknown Speaker: Mr. Landry, do you take the position that any action by the union that harms one of its members is actionable?

Mr. Landry: --We... action which would--

Unknown Speaker: It doesn't have to be discipline.

Mr. Landry: --Not under a duty of fair representation analysis.

It could be any arbitrary discriminatory, bad faith, hostile conduct, whether it would be... constitute discipline or whether it would constitute other--

Unknown Speaker: So it isn't necessary, in your view in this case, for it to constitute disciplinary action.

That's not important.

Mr. Landry: --It needn't... no.

It need not, under a duty of fair representation analysis, additionally under Landrum-Griffin analysis, it is our contention that a finding of discipline is not necessary for this case, either for the reason that the rights alleged to have been infringed by the local union under the Landrum-Griffin claim involved free speech claims under Section 101(a)(2) of the Landrum-Griffin Act.

The case involved allegations that the Petitioner was soliciting pencils which were actually campaign literature, and therefore these were protected... this activity was protected by Section 101(a)(2).

And Section 609 of Landrum-Griffin applies to discipline for engaging in protected activities.

So that is covered.

But even if it does not rise to the level of discipline, the Petitioner did plead Section 102--

Unknown Speaker: To violate the National Labor Relations Act, however, doesn't the action have to relate to the individuals rights as an employee?

Would... would... would it be a violation of the duty of unfair... duty of fair representation, for the union to send some goons over to break up the... you know, On the Waterfront.

Johnny Friendly sends over some mobsters to destroy somebody's house, having nothing to do with the employment rights of the individual.

Would that be a failure of the duty of... I mean, it may be criminal, but would that violate the National Labor Relations Act?

Mr. Landry: --With respect to the duty of fair representation act... duty of fair representation doctrine, the cases have considered the duty of fair representation of the union to be co-extensive to its authority as a representative of the individual.

So--

Unknown Speaker: Well, as a representative vis a vis the employer.

Isn't that right?

I mean, the very term representation, it... it has to relate to the employee's rights against the employer, no?

Mr. Landry: --We believe it... yes, it... it would, but it could go beyond that as far as the unions negotiation, collective bargaining agreement, the administration of the collective bargaining agreement--

Unknown Speaker: All of which relate to what the individual employee gets from the employer.

No?

Do you know any case that doesn't in... like jobs, like salary, like working conditions and so forth.

Do you know any case that doesn't involve the employee's relation to his employer?

Mr. Landry: --As long--

Unknown Speaker: Or prospective employer.

Mr. Landry: --Yes.

However, rights, the Landrum-Griffin Act claims, go beyond that analysis.

And--

Unknown Speaker: Right.

Mr. Landry: --basically deal with the internal, the member's rights against his own union.

So, therefore, we believe that the free speech claims, under your analysis, if the union would send out someone to physically harm a union member, that would fall under an infringement of Title I of the Landrum-Griffin Act, the Bill of Rights, and would therefore be actionable as an infringement.

Now, whether that would constitute discipline or not would be... is very... difficult--

Unknown Speaker: Mr. Landry, you have been asked a couple of questions about the duty of fair representation claim, and each time you have answered them by talking about your other claim.

Are you abandoning your duty of fair representation claim?

Mr. Landry: --No, we are not abandoning it.

We're... I'm trying to--

Unknown Speaker: But are you agreeing with Justice Scalia that it just doesn't apply in a case like this?

Mr. Landry: --We believe it does apply in a case like this, because this contract, or this out-of-work referral system, was established by the collective bargaining agreement, where and in the collective bargaining agreement, Article 5 of that agreement, places a duty upon the... places a contractual obligation on the union to furnish workers upon request by the employer.

And the employer, if he... can submit letters of request to the union, and after 48 hours period, if the union is unable to furnish sufficient workers in order to fulfill the employer's need, then the... at that point, the employer can go out and fill his needs with other--

Unknown Speaker: So the union's actions depends on who gets a job, who's referred.

They will refer--

Mr. Landry: --In effect, the union can... has control over who can--

Unknown Speaker: --Exactly.

Mr. Landry: --get the job in this particular case.

So that they are... they are administering this--

Unknown Speaker: And who will be permitted to enter into an employment relationship with the employer.

Mr. Landry: --That's correct.

In--

Unknown Speaker: Just in case you are in any confusion, my problem is not whether the duty of fair representation applies to this.

I... I think it does.

My problem is whether the disciplinary provision applies to this.

Mr. Landry: --Yes, and I--

Unknown Speaker: Are you going to address that one?

You... you... you said the word discipline could be narrower.

Why isn't it narrower?

Why doesn't it relate only to taking away rights that are distinctive to the union employee, his rights as a union member, as opposed to his rights as an employee, whether he is a union member or not.

Mr. Landry: --The purpose, Justice Scalia, for the enactment of the Landrum-Griffin Act in the '50s, was concern that the... that there were intra-union problems that were not being addressed by the National Labor Relations Act.

And the will... the purpose of this is to ensure that there is an overriding analysis that unions are democratically governed within themselves and responsive to the will of the majority of the union.

Now, the... there were... there were... was concern in Congress over abuses and deprivation of livelihood which were taking place in the '50s, and the Landrum-Griffin Act was enacted in response to those concerns.

And there is legislative history in the brief of the amicus... of the amici curiae indicating remarks made by Senator McClellan and Senator Kennedy highlighting this particular fact.

Discipline, the concept of what would constitute discipline, it is our contention, can also involve employment rights in this particular case because the... we have basically a job referral system through a hiring hall system.

And the union... the... the whole purpose of the hiring hall is to control who, and refer members to jobs.

Okay, now, the--

Unknown Speaker: Not just union members.

Everybody.

Right?

I mean, any employee?

Mr. Landry: --That is correct.

We understand that, we would concede that theoretically, in theory, that a non-employee, a non-member, could make use of the, of this job referral system.

However--

Unknown Speaker: Well, how is depriving of that a union discipline, any more than, you know, you speak of the bar disciplining one of its members.

That doesn't mean sending up some... somebody out to smash his house, and it doesn't... it doesn't mean prosecuting him criminally.

It means depriving him of some of his unique, distinctive advantages as a member of the bar.

Why doesn't union discipline mean the same thing?

Mr. Landry: --Because we would submit that the ability to use job referrals and to use the union... the hiring halls, which is really a clearing house for information, would... is a distinct membership and advantage... sorry, distinct advantage of being a member in the union.

And basically what the union--

Unknown Speaker: Excuse me.

I thought a non-union member was entitled to the same thing.

Mr. Landry: --Yes, he is.

But--

Unknown Speaker: Well, then, it is not distinctive to the union.

Mr. Landry: --But it's... it's a feature, and it's an important feature of union membership to be able to use... make use of this hiring hall.

Unknown Speaker: It's also an important feature of non-union membership.

It's like breathing in and out.

Mr. Landry: How... however, for example, I think in the real... operation of the real world, employers lean heavily on the use of these hiring halls, and in order... in depriving a union member of the use of a hiring hall, what you're telling that union member is that the only way you are going to come back here, if it is for a reason that, under... if it is for a protected reason, as we have here, you are telling that union member that look, either you recant your position opposing our union leadership, or leave the union.

Unknown Speaker: Well, may... maybe... I... I... no doubt it's a failure of a duty of fair representation to deprive any member, union or not, of that... of that feature, but every time the word discipline is used in the statute, the word discipline that you are relying upon, it... it's part of a whole series of words.

It says no member may be fined, suspended, expelled or otherwise disciplined.

That... that means, to me, internal, internal sanctions relating to union membership, not something totally external.

Mr. Landry: But the statute, Section 609, does refer to other... otherwise discipline as well.

Unknown Speaker: Yes, but it's in a series of words, and it's standard statutory construction that... that one word in another series is... is colored by those other words.

And the only other words put in there are all internal stuff: fined, expelled, suspended or otherwise disciplined.

I--

Mr. Landry: However--

Unknown Speaker: --I find it very strange to think that that means anything except something pertaining to your status qua union member.

Mr. Landry: --However, this union out of work referral list is administered by the officials of the union, and when... for... when you have facts as we have in this case, that the... that the Petitioner opposed the then-in-power union leadership, and... and when the leadership, under color of their... their... of the union's authority, or under color of their authority as leaders in the union, seek to deprive a union member of this right to obtain referrals under that system, then they are affecting his... they are using their authority as union leaders to affect his rights as a member that he would otherwise have.

Unknown Speaker: But I would suppose that would be the case if the... if the union officers inflicted any harm upon the member, by reason of its dissatisfaction with the members particular position.

Mr. Landry: We believe there might be a line to be drawn in... in that area, and it is a very difficult one to draw.

The use of... the deprivation of jobs basically is forcing that union member to choose between protected rights or the loss... or the fear of the loss of job opportunities, or job reprisals.

At some point, again, there would have to be a penalty, some sort of penalty which would be involved.

At some point, if there is clearly unauthorized activity, for example, physical abuse, we believe that that might fall under infringement if it was for protective activity; it may not fall under the term discipline.

However, it appears that discipline such as... such as restricting union member from the use of job referrals is a traditional form of discipline which is used in some cases.

For example, 90-day benching, which means taking them off the list for 90 days, is commonly used.

Unknown Speaker: How about breaking his leg?

I mean, the Johnny Friendly example again.

The union... union leader sends over a mobster to break his leg for opposing the union leadership.

Is that discipline?

Mr. Landry: That... that, we believe, may constitute an infringement of rights.

It may not be discipline because it is not a traditional type of--

Unknown Speaker: So, there are infringements of rights that are not discipline, and... and... and some things, some protections of the union members' rights under Title XXIX have to be guaranteed in other ways than under this... the LMRA.

Mr. Landry: --Which we believe would be guaranteed under... if it were for protected activities, some sort of reprisal infringement, that would be covered under 101(a)(2), made... made actionable through 102, free speech.

Unknown Speaker: Well, how?

102 says have been infringed by violation of this Title.

Any persons whose rights secured by this Title have been infringed by violation of this Title.

Breaking his leg would not be a violation of this Title, would it?

Mr. Landry: If his free speech rights were violated.

It... it... but the point is it would be an infringement--

Unknown Speaker: You're... you're not reading the full provision.

It says any person whose rights secured by this Title are infringed by a violation of this Title.

Now, the rights... you say the rights are secured, right, but they have to be infringed by a violation.

And breaking someone's leg is not a violation of this Title, as far as I know.

Unless you think that it that it's discipline.

Mr. Landry: --We don't... we... we believe that might be stretching the concept of discipline too far, if it is not a traditional form of discipline of some sort.

Unknown Speaker: But if you don't stretch it all the way then your... then your strongest argument for stretching it at all is gone, that somehow this section has to be self contained and every possible infringement of the right of the union member has to be punishable under this Title and nowhere else.

It seems to me you are acknowledging that there are some that are not punishable under this Title.

Mr. Landry: Well, it... if we are going to use the word discipline as a way of distinguishing activity, perhaps the Court could make infringements... make any of this activity actionable as an infringement under 101(a)(2) and 102, or actionable under 102.

Unknown Speaker: Mr. Landry, may I ask you a question about your duty of fair representation claim?

Your opponent says in your count 1 you don't allege any intentional misuse of the hiring system.

Do you agree with that reading of your complaint?

In other words, does your count 1... would your, the theory of count 1 apply even to a negligent, maladministration?

Mr. Landry: We believe that in the concept of negligence under the decisions of the courts would not be enough to constitute a duty of fair representation.

However, we have alleged arbitrary discriminatory conduct without--

Unknown Speaker: So, are you saying that part of your allegation in count 1 is intentional discrimination against your client?

Mr. Landry: --We believe a fair reading of that would indicate it's intentional.

But we believe that arbitrary conduct should be enough to rise to duty of fair representation... breach of a duty of fair representation.

Now, arbitrary is something more than negligence; it is a perfunctoriness which--

Unknown Speaker: But is not necessarily intentional.

Do you,--

Mr. Landry: --Not necessarily.

Unknown Speaker: --you do not... you agree that you... your position is that you don't have to allege that it was intentional.

Mr. Landry: That is correct.

Unknown Speaker: Okay.

Can... can we rule in... in your favor based on Section 102 when you didn't plead it?

Let... let's assume that we say that this is not discipline.

Then what happens to the case?

Mr. Landry: I believe that we have pleaded facts in the... in the second claim for relief sufficient to give a basis for ruling that this is an infringement.

We have also pleaded Section 102 of the Landrum-Griffin Act, that's 29 United States Code 412, which is in there, which makes any violation of any Title I right actionable.

And that, plus the fact that we have a free speech problem in this case, we believe that although we've not specifically enumerated the 101(a)(2) free speech section, that the facts actually have been pleaded under a fair reading of the complaint.

And considering that this is a very preliminary... this was a preliminary stage.

The... basically the district court ruled on the jurisdiction aspect and never really reached the discipline aspect, that therefore the Court could rule in our favor on that... on that rationale.

I wish to reserve the remaining time for rebuttal, if I may.

Unknown Speaker: Thank you, Mr. Landry.

Mr. Shapiro, we'll hear now from you.

Argument of David L. Shapiro

Mr. Shapiro: Thank you, Mr. Chief Justice, and may it please the Court:

In the brief time available to us, I would like to focus on count 1 of the complaint, in which the Petitioner alleges that the union breached its duty of fair representation to the Petitioner by arbitrarily and discriminatorily refusing to refer him to employment through the union hiring hall.

The courts below held that this claim fell within the exclusive primary jurisdiction of the National Labor Relations Board, and for that reason, the count had to be dismissed.

We contend, with Petitioner, that that decision was in error for essentially three interrelated reasons.

First, the duty of fair representation itself.

The duty of the exclusive representative to behave fairly in representing all members of the bargaining unit is a duty that is of fundamental importance in the administration of the federal labor laws.

Second, this Court has recognized in a number of cases that the federal courts have served and need to continue to serve as primary guardians of that duty.

And finally, there is no basis in the law or in sound policy for any exception for this particular case from the judicial enforceability of the duty of fair representation, either because the case involves a hiring [inaudible] or for any other reason.

First, with respect to the fundamental importance of the duty of fair representation, it's true that that duty is not expressed in explicit terms in either the Railway Labor Act or the National Labor Relations Act, but this Court has said that the duty is implied in the strongest possible sense.

It is implied, this Court said in the Emporium case, from the very nature of the union's right of exclusive representation when it is chosen by a majority.

Or, as this Court said in the Foust case, it is inseparable from that duty.

The reason for that, we think, is clear.

When these statutes, the Railway Labor Act and the NLRA, were enacted they operated to take away from minorities and from the individual the ability they previously had to bargain for themselves with the employer.

From now on a union that was chosen by the majority had the exclusive right to bargain for all the employees in the unit.

If the employees themselves were not left with some relative duty imposed on the union, serious questions of fairness would be presented.

And indeed, since the union's authority was conferred by Congress, those questions might rise to issues of equal protection or due process.

It's partly for that reason, we believe, that this Court has recognized, the Czosek case is a very good example, that the federal courts are the primary guardians of... of this very important duty.

For one thing, the duty itself was first recognized by this Court in the Steele case.

It has been continued to be developed, refined, articulated by this Court and by the lower federal courts.

Secondly, as this Court said in Vaca against Sipes, the enforceability of this basic duty should not be left to the unreviewable discretion of the general counsel of the Labor Board, and indeed should not turn on the Labor Board's decision, which it is wholly authorized to make in the allocation of its resources, not to exercise its jurisdiction below a certain monetary threshold.

The mere fact that an employee may be working in a business that does not meet that particular monetary threshold should not be that he is deprived of the ability to enforce his right of fair representation.

Moreover, and I think this goes perhaps to a question asked earlier by Justice O'Connor, the scope of the duty of fair representation, protecting as it does against all arbitrary treatment in the employment relationship, may well be broader than the ability of the Board to enforce certain obligations that are created by the unfair labor practice provisions of the National Labor Relations Act.

The union has argued very forcefully in its brief for the proposition that some forms of arbitrary treatment do not fall under the unfair labor practice provisions of the act.

The Labor Board, of course, disagrees with that position.

The government disagrees with that position.

But if it's correct it strengthens the position we are taking here, because the effect of it would be to leave essentially unenforced the guides of arbitrary treatment that may fall outside the particular scope of the Labor Board's responsibility.

Despite the union's contention in this case, we do not read the National Labor Relations Act, the Taft-Hartley amendments of 1947, which created new union unfair labor practices, as in any sense authorizing or licensing unions to engage in broader forms of arbitrary discrimination of the kind that this Court so vigorously condemned only three years earlier in the Steele case.

That, then, leaves the question, we believe, whether there can or should be some exception to this general availability of a judicial forum for this kind of case.

We believe that there should not.

In the first place, the enforceability of this duty is not limited to cases in which the plaintiff is also bringing a 301 claim for breach of contract against the employer.

This Court has made that clear in a number of cases, starting as early as Lockridge, almost 20 years ago, and as recently as Communications Workers, only two years ago, that the duty of fair representation extends beyond the hybrid action to cases involving the negotiation, the administration of collective agreements.

And, indeed, in Lockridge the Court pointed out that the duty need not be bottomed on a collective agreement at all.

Nor do we believe that there is any justification for excepting hiring hall cases from the scope of enforcement of this duty.

Unknown Speaker: Mr. Shapiro, may I... may I ask... am I correct that it doesn't make any difference, as far as this Claimant is concerned, if we uphold the LMRDA claim, so long as we uphold the NLRA claim.

Is... is there any reason why he needs both?

Mr. Shapiro: Yes, there may be, Your Honor, because the--

Unknown Speaker: What is that?

Mr. Shapiro: --The allegations of the LMRDA claim may well turn on the allegation in count 2, that the reason why he was denied the use of the hiring hall was because he engaged in political activity in support of those who did not win the election.

Certainly to make out a free speech claim under the Bill of Rights, that allegation has to be borne out.

Unknown Speaker: Right.

Mr. Shapiro: And it may also be--

Unknown Speaker: Well, that means he has to go beyond the NLRA claim in order to make out the--

Mr. Shapiro: --Correct.

The NLRA--

Unknown Speaker: --So, if the NLRA claim is upheld, he has gotten everything that... he can't get further relief in addition because of the... of the LMRDA claim, right?

Mr. Shapiro: --Oh, I see.

I believe that may well be true, if he can make out all the elements that are necessary to recovery on count 1.

Then that, I think, probably fairly embraces the claim that is made under count 2.

The... the converse is not true.

He may be able to sustain his claim under count 1, but not under count 2.

As I was saying, I don't believe there is any basis for an exception simply because this case involves a hiring hall.

In the first place, many claims of breach of duty of fair representation that involve hiring halls are accompanied by claims that there has been a breach of contract under 301; they are hybrid claims.

This case involves a hybrid claim in another sense, that is that the claim for breach of duty is coupled with a very closely related claim under the LMRDA.

Finally, it would be strange indeed to say to an employee you may pursue a fair representation claim with respect to matters of promotion, transfer, even discharge, but not with the basic right of employment through a union hiring hall.

Union hiring halls serve very valuable functions in the administration of the employment system in this country.

But they are capable of very substantial abuse.

I see my time is up.

Unknown Speaker: Thank you, Mr. Shapiro.

We'll hear now from you, Mr. Gold.

Argument of Laurence E. Gold

Mr. Gold: Thank you, Mr. Chief Justice.

I wish to proceed undaunted by Justice Scalia's statement to talk about the duty of fair representation claim and to seek to convince the Court that that claim, as the lower courts have stated, is... is badly founded.

I think that it is most helpful to begin by noting what Congress has done with regard to hiring halls.

This is not a subject as to... which has escaped legislative attention.

And no matter how this case comes out, and no matter what the duty of fair representation is determined to encompass, individuals like Mr. Breininger who claim, at least in the second breath, that they have been harmed in job opportunities, either because they are non-members or because they are 8(b)(2) of the National Labor Relations Act.

And that's no mere happenstance.

The most contentious issue, in 1947 when Congress was considering a question of how unions which are parties to collective bargaining relationships should be regulated, was the subject of the closed shop, the requirement that to be hired you had to be a union member, and most particularly, the closed shop in connection with the hiring hall.

That debate was of the dimension of the debate we are having today over the scope of the capital gains tax.

It was an issue that was fought out in public and not in private, that gripped the national attention, that caused rallies, vetoes and the like.

And Congress came to a conclusion on... on that issue.

And the conclusion was that where unions have an active role in the hiring process they should be subject to the same norms as employers, same NLRA norms as employers who are engaged in the hiring process.

And as the language of Section 8(b)(2) makes plain, that is the gravamen of the 8(b)(2) offense, and Congress was operating against the background of well settled law that an employer in making a hiring decision violated the NLRA if and only if he acted on the basis of the union considerations.

It seems to us that the essence of the matter in terms of what the statute tells us in terms is the following.

That if an employer and a union bargain in a way which ends up in the employer doing the hiring, under the NLRA there is a violation if and only if the employer refuses hire on the basis of union considerations.

And if the employer and the union bargain in a way which provides that an outside agency, a third party, an employment agency, makes the hiring decision, the same rule obtains.

The argument here is that if the employer and the union bargain and the determination is made that the union will have an active role in the hiring process, there is a different standard, as Justice Stevens indicated, that the standard would be the one drawn from the duty of fair representation and would be... would stretch beyond alleged wrongs based on union consideration to claims that the union didn't have specific... sufficiently specific rules, which would not be a violation for the employer, that the union had rules which it didn't follow, to the detriment of people who were union members and were close to the administration, and so on.

Unknown Speaker: Mr. Gold, am I correct in understanding that the other side of that coin is that you would agree that if the allegations in count 2 were included in count 1, namely that the unfair use of the... alleged unfair use of the hiring clause... hiring hall, was for retaliation against some kind of activity, that would allege a violation of the duty of fair representation?

Mr. Gold: No.

We are arguing that that would allege a good unfair labor practice claim.

And the question here is whether that kind of unfair labor practice claim, which under normal rules would go only to the National Labor Relations Board, also states a good claim of a breach of the duty of fair representation.

To go back to what I said about the employer.

If an individual walks into court and says the employer is... refused to hire me because I am a union member, and he has the facts to demonstrate that, he cannot go to court.

He must go to the Labor Board.

Unknown Speaker: But what you're saying is that if the allegations in count 1 were made in a charge before the Labor Board, the Labor Board would properly deny jurisdiction.

Mr. Gold: No, the Labor Board would properly find that an unfair labor practice had been committed, and give the individual the remedy.

Unknown Speaker: Even if it were not for retaliatory reasons.

That is what I am saying.

Count 1, as I understand your--

Mr. Gold: No, I apologize.

I thought you were still talking about your hypothetical.

Unknown Speaker: --No, no.

As presently drafted, count 1 would not create... would not allege facts justifying Labor Board jurisdiction.

Mr. Gold: Correct.

Unknown Speaker: If they included the allegations in count 2 in count 1, then the Labor Board, under your view, would have jurisdiction and, therefore, the Court would not, because it's--

Mr. Gold: Right.

That is our argument in... in a nutshell.

That whoever is making the active hiring decision under the National Labor Relations Act is subject to a unitary regime, a unitary standard and a unitary procedure.

Now, this is in no way to deny that there is also a duty of fair representation which applies in at least two other situations, neither of which Congress focused on in 1947 in the same way it focused on the party with the act of hiring role.

In one situation, as Mr. Shapiro stated, when a union negotiates with the employer on the... for a collective bargaining agreement, it is bound by a duty of fair representation under this Court's decision.

That's an implied claim and an implied judicial cause of action which has been created out of the act.

Obviously, that is not a situation in which the union is standing in the same position as the employer, in the same way as we have where the union is taking an active role in the hiring process and has, in... in essence, supplanted the employer.

It is acting on behalf of the individuals to set rules that the employer will follow.

And it is also settled that where the union is the party which administers a grievance and arbitration system vis a vis the employer, that the union is bound by the duty of fair representation, and that duty, for intensely practical reasons and other reasons, as the Court said in Vaca, is subject to suit in court.

Unknown Speaker: --May I ask another question to be sure I understand your theory?

Mr. Gold: Yup.

Unknown Speaker: Supposing the union, for a non-union related reason, said they would apply... use the hiring hall procedure only to recommend white applicants and not recommend any black applicants.

That, I understand, would not constitute an 8(b)(2) violation because it had nothing to do with union status.

And under your view it also would not constitute a breach of the duty of fair representation.

Mr. Gold: That's correct.

It would constitute a blatant violation of Title VII of the Civil Rights Act of 1964, which, at the labor movements behest, covers not only employer discrimination but union discrimination.

Unknown Speaker: Right.

Mr. Gold: And the point that is inherent in your question is one that we have to face up to, because we are saying that in that situation there would be no NLRA-based claim, even though in other situations, the two I've mentioned, in negotiating collective bargaining agreements and in administering grievance and arbitration systems, the union would be subject to both an NLRA claim and a Title VII claim.

And--

Unknown Speaker: Tell me again, I guess I am a little slow on this, tell... tell me why the... neither... neither an unfair labor practice nor a duty of fair representation claim would lie, in that situation.

Mr. Gold: --In the situation that Justice Stevens--

Unknown Speaker: Yes.

Yes.

Right, right.

Mr. Gold: --hypothesized.

Unknown Speaker: ULP would not lie because--

Mr. Gold: Because Section 8(b)(2) covers situations in which the union causes or attempts to cause a violation of Section 8(a)(3).

Section 8(a)(3) prohibits discrimination which encourages or discourages union membership, and this Court, in a series of cases, has said that you have to show that there was a union consideration that is on the base.

The easy way of looking at it is if an employer said I will only hire white people, would he be subject to an 8(a)(3) claim.

The answer is no.

He would be subject to a Title VII claim.

And we are saying that in this one situation where the party that bargained things out and the employer said you will stand in my shoes in the hiring decision, that Congress decided that the rules would be the same.

Now, in other situations where the union is not standing in the employer's shoes, is not taking the employer's active role in making hiring decisions, we can't make this equation between what employers can do under 8(a)(3) and what unions can do as exclusive representatives.

In that situation, in those situations, in part for a reason that Mr. Shapiro gave and which comes from Vaca, because the union stands in the way of the employee acting against the... vindicating legal rights against the employer, the union is bound by a duty of fair representation.

There is no analogy to what the employer does.

The union stands between the employee with a grievance about what the employer is doing and his... and the employer.

And therefore, there is a duty of fair representation.

Unknown Speaker: --But when the union takes over the employers prerogatives, there's nobody to be represented to, except the union itself.

Mr. Gold: That's... yeah, I mean, it is the... it is the union, it would be... it is certainly possible, but it would be paradoxical for Congress to say that, whereas in 1946 the individual had no right against the employer for his direct action in refusing to hire, if the employer and the union reach an agreement which... which says the union will act for me from now on, there ought to be a new norm.

Nothing has been taken away from the employee in that situation.

After all, where the union is bargaining with the employer over what the... the contract terms will be, it can be said, as Vaca says, that the employees have lost something.

Where the union is dealing with a grievance and the individual says I have a contract right vis a vis the employer, and the union is the only means through which I can vindicate that, through the grievance arbitration system, and the union acts arbitrarily, in those situations you have the union acting in a representative capacity in a way which can be said to disadvantage the individual in his ability to vindicate his legal rights.

But here--

Unknown Speaker: Mr. Gold, isn't... isn't there a fundamental difference, where the employer refuses to hire somebody, he is not standing in a... in a... in a trust relationship to that individual that he refuses to hire.

Where the union refuses to hire... to hire somebody, the union has specifically been... been approved by Congress as someone who is supposed to represent employees, who has a special relationship of care and... and... and representation for them.

So to say, you know, the employer can get away with it, so the union should be able to get away with it too without violating the labor laws, is... it's not persuasive.

Mr. Gold: --To say that the union has a trust relationship--

Unknown Speaker: But that's its job, isn't it?

Mr. Gold: --Well, but it's the job... it indicates the nature of the job we're about here.

The... what is inherent in the National Labor Relations Act, which should be vindicated by this implied cause of action.

I... I think we... we ought to be quite frank about the parameters of the debate.

You can read the whole National Labor Relations Act and you'll never find a duty of fair representation.

You can read the whole act and you're never going to find a basis for 1337 judicial jurisdiction.

Unknown Speaker: Well, that was the... the union... unions have argued that way long ago.

Mr. Gold: Well--

Unknown Speaker: And lost.

Mr. Gold: --The question is, and I admit to making this one of my subspecialties, whether we continue to lose out to infinity, it... it... it seems to us that, as Chief Justice Burger said in United States v. 12 200-Foot Reels of Tape, one of my favorite decisions, that the jested of possibilities of taking one step at a time shouldn't be pressed beyond where reason takes you.

And it seems to us that in determining how far the Court ought to go in defining what's within the duty of fair representation, that's what... that... that's what the discussion is about.

What are... what is the scope of... of this--

Unknown Speaker: But this... this union was certified, wasn't it?

Mr. Gold: --Oh, this union was certified exclusive representative--

Unknown Speaker: And it purported... it purported to contract on... in a representative capacity.

Mr. Gold: --And I think its contracts--

Unknown Speaker: And the only reason that an employer made this deal with the union was because it was the represent--

Mr. Gold: --Yeah, certainly one... one possibility is to say that despite whatever lessons we can grasp from the particulars of 1940... of what happened in 1947, 8(b)(2) and so on, that anything that flows out of union exclusive bargaining relationships should be covered by the duty.

And that is, in essence, the position for which the United States argues here.

Our counterargument is that the Court, in implying norms and in implying judicial causes of action, ought to draw those norms and causes of action out of the entirety of the statutory materials which form the base of the implications.

Unknown Speaker: --Well, her's... here's... you think here that... on this... that... these... this kind of discrimination, alleged discrimination in administering the hiring hall, wouldn't be an unfair labor practice either.

Mr. Gold: Yes, we're--

Unknown Speaker: You think the Board has gone too far in... saying what is an unfair labor practice, and the courts may be in danger of going too far on the duty of fair representation.

Mr. Gold: --Well, it would sanction the... the matter.

In other words, we believe that the right rule concerning 8(a)(3) and 8(b)(2) is the rule this Court stated in Local 357 Teamsters.

And that is they have to show union-based discrimination.

The Board is--

Unknown Speaker: Well, you might be right about the unfair labor practice and wrong about the duty of fair representation.

Mr. Gold: --Well, but the point is that if we're right about the unfair labor practice, and this Court extends the duty of fair representation to the point of covering arbitrary action which would not be an employer or a union unfair labor practice, then Congress certainly labored in vain, and the implied cause of action goes well beyond the specifics of the particular determination that Congress made.

In other words--

Unknown Speaker: The reason this is not an unfair labor practice, Mr. Gold, is because the union's actions was not directed to discriminating in favor of or against a persons membership in a union.

Mr. Gold: --Correct.

Yes.

And, there's no allegation that in... in count 1.

I... I... I think in part it's a recognition that there are some problems with the allegation that there was retaliation for union activity here, but in part it was that the complaint would look like, walk like and smell like an 8(b)(2) if the statement was that the union should incur NLRA liability in a judicial forum for discriminating on the basis of union conduct.

'Cause at that point, all you would have to do is look at 8(b)(2), look at its legislative history and know that Congress specifically determined that that kind of claim on a particular standard ought to go to the Labor Board.

Unknown Speaker: Mr. Gold, I might, I... I... I might agree with you as an original matter, but isn't that water over the dam?

Haven't we... didn't we create duty of air representation when... when the Board itself had not yet determined that there existed any such thing which could be an unfair labor practice.

Mr. Gold: What is water over the dam, as far as we are concerned, is that there is a duty of fair representation.

And that it applies in situations in which the union is acting in a way that no employer does.

But there is no case, and therefore no water and no dam, that states what the limit of the duty of fair representation is.

And we're arguing that this ought to be a limit, that when you look at the whole statute which you are elaborating through a process of implication, that it is a mistake to... to define the duty of fair representation so broadly that it duplicates the particular coverage that Congress intended with regard to the regulation of hiring decisions under the NLRA, and indeed overpowers the rule that Congress, after the most contentious debate, arrived at with regard to when a hiring decision is a violation of Title VII as opposed to... I mean, of the National Labor Relations Act as opposed to a violation of some other claim.

What is at issue here is both the proper tribunal for determining the validity of NLRA hiring decisions, which, overwhelmingly before this late-blooming theory, have been handled by the National Labor Relations Board.

And--

Unknown Speaker: Mr. Gold, I take it, by virtue of your focus exclusively on the NLRA aspect of the argument, that you are not so concerned then about the fact that there may be a statutory cause of action under LMRDA.

Mr. Gold: --I wanted to, glancing up at the clock, turn to that.

We are equally concerned, but we just feel much better armored against the Landrum-Griffin claim here because of the nature of the claim that was actually made, the nature of the question that--

Unknown Speaker: Do you think there is a Section 102 claim made on the face of the complaint?

Mr. Gold: --No.

The complaint... let me just say something very quickly about the structure of the Landrum-Griffin Act.

The Landrum-Griffin Act has a provision, Section 101(a)(2), which safeguards member free speech.

It has another provision in Section 101(a)(5) which prevents discipline without due process, or the imposition of union penalties without due process, hearing and so on.

Section 102 gives individuals a cause of action for a breach of either 101(a)(2), the free speech provision, or 101(a)(5), and Section 609, as this Court said in Finnegan v. Leu, which has been referred to here, in essence replicates, and for the purposes of this case, is parallel to Section 102.

The only claim made in the complaint, the only question raised in the petition for certiorari, concerns Section 101(a)(5), the due process provision, and Section 609.

There is no reference to Section 101(a)(2).

It was never raised; it's not here.

And this Court quite clearly held, in Finnegan v. Leu, that retaliatory actions that affect a union members rights or status as a member of the union are all that is covered by Section 101(a)(5) and Section 609.

So we think the lower court was plainly correct on this Court's precedence with regard to the Landrum-Griffin claim.

To say that a job referral out of a non exclusive hiring hall is an incident of membership, when the union can't limit the use of the hiring hall only to members, and doesn't purport to, is no more sensible than to say that discharge from a union position, an appointed union position, is discipline.

And the Court squarely, of course, has rejected the latter of those two propositions.

I want to say something, too, about the practicalities of this.

What really is affected here is whether you have to go through a due process system in administering a hiring hall.

The theory of the Petitioner in this case is that any union decision, A is referred rather than B, is a form of discipline to B.

And therefore, that you have to serve a charge on B for not having worked as long as A, or for any other claim.

I want to make it plain that nothing we ask this Court to say or do implicates the question of whether somebody who pleads 101(a)(2) states and says that one of the ways that the union retaliated against him for exercising free speech is job related, doesn't have a good claim... cause of action.

That is just not here.

That's a question for the future.

It was never pled; it was never litigated.

So, in sum, we say that insofar as the Petitioner here claims that the union acted against him based on the fact that he was a NLRA--

Chief Justice Rehnquist: Thank you, Mr. Gold.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Sheet Metal Workers v. Lynn - Oral Argument

Sun, 06 Feb 2011 03:44:49 +0000

Case:

Sheet Metal Workers v. Lynn

Media File:

86-1940_19881107-argument.mp3

Related Transcript:

86-1940_19881107-argument.xml

Transcript:

ORAL ARGUMENT OF DONALD W. FISHER ON BEHALF OF THE PETITIONERS

Chief Justice William H. Rehnquist: We'll hear argument next in in No. 86-1940, Sheet Metal Workers' International Association v. Edward Lynn.

Mr. Fisher, you may proceed whenever you're ready.

Mr. Fisher: May it please the Court:

The case at bar is similar to and the International submits a logical, at most a logical extension, of Finnegan v. Leu, which has decided by this Court about five years ago.

If anything, the case is a stronger case for the union than Finnegan, because in Finnegan, there were 15 appointed business agents that were working, and who were dismissed because they had in the past supported the political opponent of the incumbent president and campaigned for him.

And in Finnegan, the new president, the newly-elected president, extrapolated from that fact, believing that these people would not be good agents.

They would not be loyal to him, they would not carry out his policies, and therefore he dismissed them on a wholesale basis.

In this case, we have--

Unidentified Justice: xxx--

Mr. Fisher: --In the Finnegan case, it was held that an elected, an appointed agent, such as these business agents, were not denied their rights under sections 101(a)(1) and (a)(2) of the LMRDA, because of this indirect infringement upon their expressive activity, as I read the case, Mr. Justice White.

In this case, we have the same type of confidential policymaking agents.

In this case, the agent who was removed from his office during the period of the trusteeship, was originally elected to his position, but at the time the activity involved occurred, the union had been placed under a trusteeship by the International Union, and the trusteeship was administering the affairs of the local union, and had plenary authority under the union constitution to remove and replace any officers or employees of the local union.

Now, this particular business agent, Lynn, not only was likely not to support the rehabilitative policies of the trustee, but he actually did not support them, and in truth, he sabotaged the policies.

And it was only after this series of events took place that the trustee decided that he could not continue to operate and administer the affairs of the local union and try to correct the conditions for which the trusteeship was imposed with Lynn on his staff.

So Lynn--

Unidentified Justice: --Can a trustee, Mr. Fisher, make policy for the local the same way as elected officials could, if it weren't in trusteeship?

Mr. Fisher: --Yes, sir.

The trusteeship has the authority to administer the affairs completely of the local union during the period of the trusteeship, Mr. Chief Justice.

Unidentified Justice: But does it have the authority to raise the dues?

Mr. Fisher: No, sir.

No, sir.

It does not the authority to raise the dues.

Unidentified Justice: Well, isn't that a legitimate issue for debate within the union, even though it's in trusteeship?

Mr. Fisher: Well, it is not... Mr. Justice Stevens, it is not the position of the International Union that it is not a legitimate matter for debate, just as in the Finnegan case, it was a legitimate matter for debate who was to be the next president of the local union.

It is of course a right of a member under sections 101(a)(1) and 101(a)(2) as a member to take positions on matters of importance in local union affairs.

Unidentified Justice: Well, did this man have the right to take the position he took, or... why is that sabotaging the trusteeship?

Mr. Fisher: Well, because--

Unidentified Justice: If it's something that is open for fair discussion within the union?

Mr. Fisher: --Well, it is no more open, Justice Stevens, than the issue of who was to be president, as I say, in Finnegan v. Leu.

Every member has the right to take a position on issues before the local union, and every right, every member of a local union definitely has a right to express those views.

Those are rights of membership, and Mr. Lynn, after he was removed from his position as a business manager, continued to have his rights to express himself on issues that came before the local union.

There is no--

Unidentified Justice: The only question I have now is if I understand your word sabotage.

Mr. Fisher: --The trustee wished to encourage the members to support his program of correcting the conditions in the local union--

Unidentified Justice: But specifically you wanted him to support--

Mr. Fisher: --By a dues increase.

Unidentified Justice: --By the dues increase.

Mr. Fisher: And he wanted that policy to be supported by the agents, the business manager has the right and the duty and the trustee, who was in control of the union in place of the business manager, has the right and the duty and in fact, he must act through people who become his representatives.

Now, when a representative of the trustee... it could just as well have been a representative of the manager, if the local wasn't in trusteeship--

Unidentified Justice: Well, it's... except the difference is that in the other case, the leader of the union has been democratically selected, so presumably, the people that that leader would appoint are those that the majority of the voting membership would want in those positions.

But you don't have that situation under trusteeship.

Mr. Fisher: --You do not have this, Mr. Justice Stevens, in this case.

But we do have Title 3 of the LMRDA, which recognizes the imperative necessity for putting unions under autocratic control under a condition of trusteeship to operate for a period of at least 18 months, during which the presumption of legitimacy applies, in order to work a union out of these conditions of extremis that caused the International to impose a trusteeship in the first place.

And in this case, there was never a question but that the trusteeship was properly imposed.

In fact, all of the union officials, all of... the president, the business manager, all of the business agents, including Mr. Lynn himself, did send a letter to the General President of the International Union asking for relief, including a trusteeship, if he considered it desirable, because the local union needed help.

Unidentified Justice: Well, Mr. Fisher, doesn't Title 3 also provide that if a trustee is established, that it will be administered for legitimate purposes?

Mr. Fisher: It does, Justice O'Connor.

Unidentified Justice: And how is it legitimate for the trustee to try to stifle dissent on this issue of dues increase?

Mr. Fisher: Justice O'Connor, it is not, and it seems to me this is one of the lessons from Finnegan... it is not stifling dissent in the local union for a person in authority, a business manager or an International Union trustee to wish to present the program through agents that will agree with him, and carry out his policy.

Just as Mr. Leu wanted--

Unidentified Justice: Well, what if the agents don't agree with him?

In their honest disagreement, does the trustee have a right to stifle that?

Mr. Fisher: --The trustee, it is our position, has the right to remove them as his agents... as the persons through whom he must act, and whom he must necessarily rely on, and with whom he is in a confidential position with, relationship with.

After that, obviously, as union members, the individuals are free to take any position on any issue that they wish.

I mean, their rights, as union members, of speech have not been infringed, and as the Court said in Finnegan, we are dealing with what is at most an indirect infringement of speech when a union employee is removed from his position because of his disagreement on a matter of principle with his superior.

Otherwise, a principle certainly must have the right under the Act... and we think this was recognized in Finnegan... to have agents who are responsive to him, and who will carry out his wishes.

Mr. Lynn did not.

Mr. Lynn not only opposed the policies of the dues increase, which was a critical part of the policy, but he spoke against it.

He campaigned against it.

He belonged to organizations and attempted to induce them to oppose it.

He spoke against the issue vigorously at the meeting, and then when the issue was defeated, he publicly crowed about it.

He took credit for defeating the very policy of the person who was his principal and the policy he was attempting to espouse.

Unidentified Justice: If the union hadn't been in trusteeship, Mr. Fisher, the people in charge of the union under the union by laws could have removed Mr. Lynn the same way the trustee aid?

Mr. Fisher: Not in... under the constitution of this union, there is no removal power, arbitrary removal power on the part of, let us say, the business manager, who has the right to direct the business agents.

The only way that a business agent can be removed from office is by the process, under the union's constitution, of filing charges.

There would have to be a hearing on these charges.

It would be tried before probably a local union trial board, and they would decide either that there were grounds for his removal or there weren't.

Unidentified Justice: That wasn't done here, though.

Mr. Fisher: No, sir, because the trustee... once the union is placed under trusteeship, under the constitution of the Sheet Metal Workers, has the authority on his own to remove and replace anyone he wishes.

He has plenary power of removal and replacement, not only of Mr. Lynn, but of other employees in the union hierarchy also.

Now, in the Leu case, of course, in that particular local union... it was a Teamsters' Local... in that, in that case, the business, or the president, who was essentially here the same as a business manager in many union hierarchies... the president did have the right to replace and remove his agents.

And I... we think that this case is no more than an extension of the law of agency, that a principal does have the right to work through agents with whom he has compatibility, with whom he is comfortable.

Unidentified Justice: May I ask, Mr. Fisher, would the case be any different if instead of being in trusteeship, you just had a different union constitution, and just gave the head of the union the authority to remove all business agents, even those that had been elected?

It would be the same case, wouldn't it?

Mr. Fisher: If the president of the union had the authority to remove elected business agents, and it was in the... and he has such authority in the constitution?

It would get closer to the same case.

It would get closer also to Finnegan v. Leu, Mr. Justice Stevens.

Unidentified Justice: But it doesn't seem to me the trusteeship is relevant for anything except the fact, as you suggest, that the trustee has the power of removal, because certainly you would... I would think you would agree that there would be a violation if they said: take him out in the alley and beat him up because of the speeches, or something of that kind.

That would be a violation, wouldn't it?

Mr. Fisher: That is taking a person's membership rights--

Unidentified Justice: No, no, no membership right.

He'd still have his right to everything... the same membership rights he has.

He just would have suffered same adverse consequences from his speech.

But he'd remain a member of the union, all the job rights, and all that.

Mr. Fisher: --Well, that was suggested in the brief, Mr. Justice Stevens.

We don't think that that analogy or that example is applicable.

Unidentified Justice: Well, would you think there would be a violation in that instance?

Yes or no?

Mr. Fisher: There would be a violation of his right as a member, because he was assaulted, physically, physically harmed, for speaking out on an issue.

That, it seems to me, is quite different from saying that a person has the right to take positions diametrically opposed to those of his principal and remain employed by the union.

We concede that he had a right, as a member, to go to a meeting and to speak, and to take any position that he wished to take as a union member.

But to say that that person also has the right to be and to remain an agent--

Unidentified Justice: What if they just cut his salary in half, but let him continue in his position?

That would be forbidden, then, I suppose?

We don't like the speech you made, so instead of making $300 a month in this job, you'll make $100.

Mr. Fisher: --Justice Stevens, I really don't know the answer to that.

All I know is that this is a question of a right to choose the people that you want to work with.

You either work with them, on the one hand, or you don't work with them.

Now, if you can penalize them, you say, in some way, by cutting their salary, I really don't know what the answer to that question would be.

I would think it would be less than the situation we have here, which is a person has the right to select.

For instance, I don't think cutting--

Unidentified Justice: Well--

Mr. Fisher: --the salary in half of an agent would mean that the principal was unwilling to work with him, I mean, the normal--

Unidentified Justice: --Well, in this case--

Mr. Fisher: --Excuse me, Justice Marshall.

Unidentified Justice: --Well, in this case, if a business agent makes a speech that the president of the union, the International President, doesn't like, what it anything can he do?

Mr. Fisher: The International President?

Unidentified Justice: Yes, sir.

Mr. Fisher: He cannot do anything to the--

Unidentified Justice: He can... he can send--

Mr. Fisher: --The International President cannot... well, do you mean... if the International President had someone on his staff, who was--

Unidentified Justice: --A business agent like this business agent here.

Mr. Fisher: --Yes, sir.

Unidentified Justice: What can he do or his own?

Against that agent.

Mr. Fisher: Well, the International President, when the local union is operating under conditions of local autonomy, could do nothing more than prefer charges if he felt that what the agent did or what the--

Unidentified Justice: Is there any other way he could get to him?

Mr. Fisher: --Not unless there was a violation of--

Unidentified Justice: Other than to put the local in a trusteeship?

Mr. Fisher: --Well, the local is not placed into trusteeship for any improper or ulterior motive here.

Everyone wanted--

Unidentified Justice: Well, couldn't it be done?

Mr. Fisher: --No, sir.

I believe under Title 3--

Unidentified Justice: Well, what would stop it from being done?

Mr. Fisher: --What would stop it from being done is it would not be for a proper purpose under the statute.

A suit could be brought.

Unidentified Justice: Well, would that stop it?

Don't some labor unions do things improperly?

Mr. Fisher: Well, that's why the Landram Griffin law was enacted, and there are rights given to members who believe that their rights or their prerogatives under the Bill of Rights have been violated.

Unidentified Justice: This man was incalcitrant.

You couldn't get rid of him any way but by trusteeship... am I right or wrong?

Mr. Fisher: I... I can't agree with the proposition you're positing, Mr. Justice Marshall.

Unidentified Justice: Yes.

But am I right--

Mr. Fisher: I can't see it, because there is no evidence whatever in this case, and in fact it is not true that the trusteeship was imposed in any way because of the presence on the staff of Mr. Lynn as a business agent.

Unidentified Justice: --Mine was just a hypothetical, it wasn't this case.

Mr. Fisher: A trusteeship that was imposed for the purpose of getting rid of a business agent that a union president or a general president didn't like would not be imposed for one of the purposes under the statute, and it would be impermissible if challenged in suit.

Unidentified Justice: Thank you.

Mr. Fisher: Now, it is clear, moreover, in this case, that Mr. Lynn was not really opposed to a dues increase as such, because he was asked by the trustee, Mr. Hawkins, to support the policy and he said he wouldn't support it, and Mr. Hawkins asked Mr. Lynn what it would take to support it, and he said you've got to fire two other people on the staff.

You've got to fire the business manager, who was a Mr. Fox, and you've got to fire another business agent... there were two business agents on the staff.

xxx Mr. Hawkins.

After such a statement is made to the principal, who has to work through agents, that I won't support this policy unless you fire these people, and if you do fire these people, I will support the policy, he could not work with that agent.

It became a burden and the statute, if it please the Court, does not require union officials with plenary removal authority to work through agents that they cannot... that are not cooperating with them, and that they cannot deal with, and will not further their objectives.

It was found by the Court below, and it is not disputed, that Lynn's suspension from employment as business agent didn't impair his membership rights in the union.

He was entitled to and did attend membership meetings; he did express himself on issue that came before the union, and he exercised all rights of membership, just as the dismissed agents in the Finnegan v. Leu case did.

Unidentified Justice: Mr. Fisher, is there any evidence that this agent was unsatisfactory for any reason except his opposition to the dues increase?

Mr. Fisher: Well, it turned out, subsequently... which is not part of this case... he, his... he was not performing his duties overall in a satisfactory manner.

But that is not before the Court, and it isn't part of the case, Justice Stevens.

There were other complaints, but it is... it appears on the basis of the evidence... this case was submitted on a motion for summary judgement.

In fact, it was cross-motions for summary judgement, and there were undisputed issues of fact that were submitted before the court.

And the court had those controverted issues of fact, and decided this case on the basis of those facts and of no other cases... no other facts, excuse me.

Unidentified Justice: Is it true that the... as Lynn's brief says, that after he was removed, he was never dispatched for work for the union's hiring hall?

Mr. Fisher: That is an issue that is being litigated at this time before the National Labor Relations Board, and that has never been resolved.

And those are not the issues, again, that were before the Court on this first count.

The only issue raised in the count that is before this Court is the question of whether his removal as business agent violated his speech rights under section 101(a)(1) and 101(a)(2) of the Act.

And that is... that is the only issue.

The other parts of the case were dismissed, and they have not been appealed.

They are not before this Court, and therefore the union says no, but it's a question that has never been resolved.

Unidentified Justice: But for purposes of our decision, we assume none of that other happened?

I think you're--

Mr. Fisher: That is--

Unidentified Justice: --but on the other hand, we also assume that really the only reason for discharge was his speech?

Mr. Fisher: --Well, his--

Unidentified Justice: Even though there may well have been other factors.

Mr. Fisher: --No, his speech, and his statement that you fire these other two people, and then I'll support you.

It is his position of opposition, his position of opposition to a very important objective--

Unidentified Justice: Well, [inaudible] to whether you're trying, you try and solve the financial problems by cutting expenses on the one hand, or by raising dues on the other?

I know it's oversimplifying--

Mr. Fisher: --Certainly.

Unidentified Justice: --and one way to cut expenses is to get rid of some of the, some of these people, and this was consistent with his views on the major authority.

Mr. Fisher: Well, I'm not saying that there isn't logic to his position, of course.

But the principal made a decision, and he wanted his views to be--

Unidentified Justice: But the irony of your argument is that if the principal sort of acts as though he has the right to make the decision when, as I understand it, it is a decision that had to be made by the membership?

Mr. Fisher: --Unquestionably.

It's the same kind of decision--

Unidentified Justice: There's some tension there.

Mr. Fisher: --that was made by the members of the local union in Finnegan v. Leu.

I mean, you have to have an election to elect officers, and you have to have an election, or you have to have a vote in order to raise dues.

I will reserve--

Unidentified Justice: Please, let me ask you--

Mr. Fisher: --Yes, sir, Mr. Justice Scalia.

Unidentified Justice: --You referred to the trustee's authority repeatedly as autocratic.

It Is autocratic for most things, but is there any indication that he is supposed to have some special authority to determine the outcome of elections on that one issue of dues increase which is left to the democratic process?

Mr. Fisher: Oh, no.

When I said autocratic, he does have autocratic authority in terms of who's going to work and who isn't going to work, and what things are done.

Justice Antonin Scalia: Well, virtually everything, except with respect to dues increase.

That's not his decision.

That has to be taken democratically.

Mr. Fisher: That is correct, and as a member, he had the right to oppose it.

But as a person attempting to implement the policy of the trustee, the trustee wished to have his representatives at least not actively oppose his program to solve the union's economic problems by a dues increase.

Now, that could be turned down by the members... there is no doubt about it, and in this case it was, Justice Scalia.

But it's a question of whether this... whether after having refused to go along with the team to carry out the policy of the superior official, in those circumstances, the principal could get rid of an unwanted agent.

Unidentified Justice: Well, that's the crux of the case, as far as I'm concerned... whether the authority given to the trustee, the autocratic authority... I think it's right to refer to them as autocratic authorities... includes the authority to influence by his actions the outcome of that democratic election.

That one item--

Mr. Fisher: Well, I don't know that... Justice Scalia, I'm not saying that it's influence.

He wasn't fired because he didn't get up and speak for it.

But he totally opposed it, and it was against the program and it was against the policy that the trustee was attempting to input, and--

Unidentified Justice: --But under your view he could have been fired for refusing to get up and speak for it.

Mr. Fisher: --Oh, no.

I'm not... I really don't say that, Justice Stevens.

I'm not saying that at all.

Unidentified Justice: But why not, if he has that autocratic power?

Mr. Fisher: No, if I used the term autocratic, I may have made a problem for myself.

I'm not talking about Czarist Russia, or anything like that.

I'm simply saying that the union trustee does have the right to administer the affairs and to remove personnel, and it is so stated in the constitution, and it is at least as much authority as Mr. Leu, the new business, or the new president in Finnegan v. Leu, had, when he fired those 15 business agents.

Unidentified Justice: Well, are you doubting his power to remove him for refusing to support affirmatively the dues increase?

Mr. Fisher: Refusing to support affirmatively?

Unidentified Justice: Yes.

Instead of the facts we have, just say he asked him to get up and make a speech in favor of it, and he said: I won't do it.

Could he then have fired him?

Mr. Fisher: I presume he could have.

I presume he could have.

Unidentified Justice: Thank you, Mr. Fisher.

We'll hear now from you, Mr. Stark.

ORAL ARGUMENT OF BRUCE M. STARK ON BEHALF OF THE RESPONDENT

Mr. Stark: Thank you, Mr. Chief Justice, and may it please the Court:

I think what we need some elaboration on the facts as to how this came about, that Lynn ran for office on a platform of economy and fiscal integrity of his union, something that predated the conflict that we have here.

A majority of members of the union were concerned with the fiscal well-being of their union and formed a sheet metal club.

And that sheet metal club sponsored a group of candidates to run for office on that enunciated platform.

And Mr. Lynn prevailed over six or eight other candidates for the position.

He was elected by a majority of the members to speak out on the policy that the sheet metal club supported.

Unidentified Justice: He was elected their business agent?

Mr. Stark: Yes.

Unidentified Justice: And what are the duties of the business agent?

Mr. Stark: It appears that in Mr. Lynn's case, the duties of the business agent involved enforcing the collective bargaining agreement, handling grievances, negotiating the terms of the bargaining agreement, in some instances signing the bargaining agreement, and setting policy within the union.

Unidentified Justice: xxx--

Mr. Stark: I believe he had the job a little over... almost two years.

A little over a year.

Unidentified Justice: --Who were his superior officers in the local, or other officers in the local?

Mr. Stark: There was another business agent, there was a business manager, there was a president, there was an executive Board, and some other and sundry offices that were all elected.

Unidentified Justice: xxx--

Mr. Stark: Well, Petitioners claim that there was a subordination there.

I would suggest that as a duly elected officer, he had the same status as any other duly elected officer, albeit perhaps some different duties.

Unidentified Justice: --Well, suppose the executive committee and the president, whoever it was that could try to get some help out of him decided on a program, and they wanted to sell it to them.

Suppose that they wanted, the old committee wanted to raise dues, and they would have to get the consent of the membership?

Mr. Stark: Right.

Unidentified Justice: And they asked, they ask the business agents, everybody who is an elected member to help, to go out and support it, or at least not oppose it.

Would that have been cause for removal of the business agent?

Mr. Stark: Absolutely not.

Unidentified Justice: Because?

Mr. Stark: Because it's a free speech right, it's a matter of open debate at a membership meeting where reasonable people can agree and disagree as to the wisdom of that course of action.

Unidentified Justice: Well, I know, but people can agree or disagree on all sorts of... whether a particular shop rule is, or a particular provision of a collective bargaining agreement is valid.

Do you... would the business agent be violating any duty to his superiors if he refused to support the ratification of a particular collective bargaining agreement that has been negotiated by his superiors?

Mr. Stark: Mr. Justice, when you say his superiors, perhaps I'm confused.

As the duly elected business representative--

Unidentified Justice: Well, whoever they are.

Suppose the president and the executive committee, whoever they are, ask him to support this collective bargaining agreement.

Mr. Stark: --No, no.

Because the labor union is a microcosm of our society as a whole, and our elected officials do not follow in locked step with one another.

There's room for divergent opinion, and in this case, Mr. Lynn was representing and enunciating a position on which he based his platform for election, and I would suggest that his superiors were the majority of the members who elected him, and the majority of the members that eventually prevailed on four, not just one or two, but four propositions for the membership to raise dues and four which were rejected.

Unidentified Justice: Where is the constitution of the local union?

Is it in the record?

Mr. Stark: Portions of it are, Your Honor.

Unidentified Justice: Sir?

Mr. Stark: Portions of it are, Your Honor.

Unidentified Justice: Well, is the portion about the man involved here, his duties, is that in the record?

Mr. Stark: As to his official duties as a business agent, it describes in rather broad fashion what a business agent might do.

Unidentified Justice: Well, if I ask you what was his duties, would you mind telling me what his duties were?

Mr. Stark: Of course, Your Honor.

Unidentified Justice: You'd mind?

Well, don't do it.

[Laughter]

Mr. Stark: It's at page 50 of the joint appendix, section 8 of the constitution gives some rather general and broad framework of the duties of a business manager and a business representative.

However, that's not dispositive of what Mr. Lynn actually did in Local 75.

I think we have to bear in mind that the Sheet Metal Workers is a rather large union, that encompasses many different crafts.

We have the construction sheet metal works, for example, who put in the duct work for air conditioning and heating in buildings, whereas Mr. Lynn was in a kitchen fabricating shop, where they manufacture the stainless steel and the custom-made kitchenware that goes into a commercial restaurant facility.

So the duty as spelled out broadly in the Sheet Metal Workers' constitution does not necessarily apply strictly to Mr. Lynn's duties.

Unidentified Justice: Well, among his duties are to assist and cooperate with the officers of local unions and the members thereof in carrying out the provisions of this constitution.

Mr. Stark: And Mr. Lynn was doing exactly that.

He was cooperating with the majority of the membership who felt that reducing expenses was the first step towards fiscal responsibility rather than raising dues.

I would say that--

Unidentified Justice: Are you sure that this union couldn't have a standard policy on a matter such as whether a particular clause should be included in the next... in the next labor agreement?

The president might want it, and the vice president might not want it, and they could present no common front?

Mr. Stark: --Well, that occurs all the time in negotiating a collective bargaining agreement, and very often there will be a compromise on a clause in a collective bargaining agreement that does not represent a total consensus of the bargainers, and very often it's submitted to the membership, and the membership reject it because they did want a particular clause, and the negotiating team did not get it.

The ultimate sovereignty is with the membership.

Unidentified Justice: There's no obligation for the officers to go along with the president of the union on matters such as this sort?

Mr. Stark: Not when they're going to the membership, because the membership represents the sovereignty of the union.

Unidentified Justice: Take a parliamentary system of government, Mr. Stark.

The parliament represents the sovereignty of the people, and yet you'll have a cabinet and a prime minister.

Now, the people in the cabinet are themselves members of parliament.

They have every right that a member of parliament has.

But you don't stay in the Cabinet unless you go along with the government.

You don't say: I'm going to parliament and appealing because you're the sovereign.

The prime minister says: Fine.

You go back and take your seat as a member, but you're out of the cabinet.

Now, why isn't that analogy applicable here?

Mr. Stark: Because you're not elected to the cabinet.

The president appoints a cabinet, and also we're dealing with a party system where we're dealing with such things as party loyalty, and the analogy just is not representative to a union such as the Sheet Metal Workers' Union where you do not have a Party A and a Party B, and you're maintaining party loyalty and party discipline.

Unidentified Justice: This case, to your mind, then turns on whether or not Lynn was elected or appointed?

Mr. Stark: Oh, I think it's very significant, because Mr. Lynn was elected to represent a particular point of view of his constituency, which did comprise the majority of the membership.

Unidentified Justice: Well, did the trustee have the power to dismiss him for any reason during the trusteeship?

Mr. Stark: Absolutely not.

The trustee had no greater powers than were available to any other union officer under the LMRDA.

The council Indicates plenary powers, but there is absolutely nothing to substantiate that discussion of plenary powers.

The plenary powers are not to be found in their brief, nor in the law.

In fact, Petitioners admit--

Unidentified Justice: So it doesn't turn on this particular right to discuss a dues increase?

You say there is nothing that would have given the trustees the power to take the action that he did against Mr. Lynn?

Mr. Stark: --Well, when you say that there was nothing--

Unidentified Justice: That's my question.

Mr. Stark: --Well, If we want to pose that hypothetical, and assume that they found that Mr. Lynn was embezzling money, well of course there's an action that the trustee could take, and there is a procedural due process for such an exigency, that they could bring charges against him, they could take him away from the funds, and bring charges against him--

Unidentified Justice: But for no reason of policy?

Mr. Stark: --Pardon?

Unidentified Justice: But for no reason of policy?

Just a desire to have someone the trustee can get along with?

Mr. Stark: In your second hypothetical, Justice O'Connor, no.

You could not... the trustee could not remove him just because he disliked him.

He's a duly elected officer, and in this case there's no doubt, in fact the trustee admitted that he terminated him, removed him, kicked him out of office.

Unidentified Justice: Is that some right that you find in Title 1, there's some section in Title 1 of the Act that you're relying on?

Mr. Stark: Yes.

Unidentified Justice: And what is it?

Mr. Stark: The free speech provision, of speaking out on a matter of public concern before a general union meeting, as required by 101 (a)(3).

Unidentified Justice: xxx--

Mr. Stark: I have no disagreement with Finnegan.

Unidentified Justice: --Well, they were exercising their right of speech, their claimed right of speech.

Mr. Stark: Well, there are many unions such as in Finnegan, which was a Teamsters' case, the Operating Engineers, and the Machinists Union, who elect a business manager who enunciates a platform and a policy that he proposes to carry out.

And in Finnegan, this Court correctly ruled that that business manager could select his own staff to carry out that policy which was mandated by his election by the membership.

Unidentified Justice: But the staff, however, were appointed.

Mr. Stark: Pardon?

Unidentified Justice: The staff were appointed.

Mr. Stark: The staff were appointed.

In this case, we have Mr. Lynn, who was duly elected on a platform and to represent a constituency just the same as the principal business manager who was duly elected.

Unidentified Justice: Well, the business of speaking was... if that was the, if that's what was being retaliated against, in Finnegan, it is here, too.

Mr. Stark: Except, except that the business agents in Finnegan were appointed.

They did not run for office.

They did not have to stand for election by the membership.

In this case, Lynn did.

Unidentified Justice: All right but in this case, though, they got canned for speaking.

Mr. Stark: But in this case, Lynn was elected by the membership to speak out and represent a certain philosophy.

Unidentified Justice: Your... your client was the plaintiff in the Federal District Court, Mr. Stark?

Mr. Stark: Yes, Your Honor.

Unidentified Justice: Did he make any claim there or in the Ninth Circuit that apart from Title 1, the trustee had no authority under the bylaws or constitution to remove him?

Mr. Stark: Yes, Your Honor.

It was alleged in the complaint.

Unidentified Justice: And old the District Court or the Court of Appeals ever pass on that question?

Mr. Stark: Well, since it went to the Court... well, the District Court ruled that Finnegan applied, that somehow or other there was a--

Unidentified Justice: Well, but I'm not interested in what the District Court ruled on whether Finnegan applied.

I want to know did the District Court ever pass on the question of whether apart from Title 1 the union constitution or bylaws would have prevented the trustee from removing your client?

Mr. Stark: --Not directly, no, Your honor.

Unidentified Justice: And did the Ninth Circuit ever pass on it?

They wouldn't have gone to Title 1 if they had, would they?

Mr. Stark: Well, the Ninth Circuit ruled that a cause of action had been stated, which precluded summary Judgement--

Unidentified Justice: Under Title 1.

Mr. Stark: --Under Title 1.

Unidentified Justice: But, do you make any point here that the union constitution or bylaws, apart from Title 1, didn't authorize the trustee to remove?

Had it not been for Title 1, do you contend that the trustee nevertheless couldn't have--

Mr. Stark: Well, under the union's constitution and bylaws, it's purported that the trustee would have that authority.

Unidentified Justice: --So if Title 1 doesn't prevent it, nothing else does.

Mr. Stark: That's correct.

Title 1 precludes that, because we're dealing with a free speech issue on a matter coming before the membership, and the distinction with Finnegan is that Mr. Lynn was duly elected for that purpose, to represent his constituency on a particular point of view.

Unidentified Justice: Mr. Stark, suppose there hadn't been a trustee appointed.

Would the president of the union have had the right to dismiss your client, if your client had been caught embezzling funds?

Mr. Stark: Well, if he was caught embezzling funds, he would have had the right to prefer charges against him, and start removal action against him.

Unidentified Justice: Which would... removal action would what?

Go to the memberships like a kind of impeachment, or what?

Mr. Stark: Well, as counsel indicated, it would go to a trial committee.

There would be charges brought against him, he'd be given an opportunity to prepare a defense.

There would be a full and fair hearing before a tribunal within the union.

Unidentified Justice: Even though he was elected?

Mr. Stark: Even though he was elected.

It's the same as an impeachment or a recall of any other duly elected official.

But under these circumstances, no, he would not, and I agree with Justice Stevens, who's saying that the trusteeship is irrelevant.

It is irrelevant, because we're dealing with a tree speech issue under Title 1, that he chose to speak out in opposition to a dues increase as his constituency elected him to do, and the constituency agreed with him... not once, but four times they agreed with him.

Unidentified Justice: May I just add... supposing an embezzlement charge had been brought by the trustee.

Would the trustee have had to follow the same procedures of preferring charges, and so on, or could he have just sliced him off right away?

Mr. Stark: No.

The trustee would have to follow the same provisions in Title 1 of the LMRDA.

Unidentified Justice: well, does the--

Mr. Stark: Title 1 being procedural due process far a given offense, and section 609 being an absolute prohibition of taking any discipline for exercising your rights under the Act.

Unidentified Justice: --Well, I must confess I'm a little puzzled.

You indicated to the Chief Justice that the trustee did have the power to remove an elected official without following these procedures, as I understood it.

Mr. Stark: Oh, no, no, no, no, no.

I hope I didn't say that.

Unidentified Justice: Oh.

You would have to... now, did he follow these procedures in this case?

Mr. Stark: No, he did not.

He did not follow... he did not follow the procedures under the LMRDA, nor did he follow the procedures under the Sheet Metal Workers' constitution and bylaws.

Because as counsel indicated that if you're going to remove an elected official, absent any trusteeship, which I still agree is immaterial, that he would still be provided a trial, which was not provided Mr. Lynn.

Unidentified Justice: What about there is a trusteeship?

You answered me a few minutes ago, I got the impression you're giving a different answer to Justice Stevens.

Assume there is a trusteeship... not that the original elected officials are in.

Have you ever contended... do you contend in this Court that the trustee lacks authority under the union constitution or bylaws to remove Lynn?

Mr. Stark: No, because--

Unidentified Justice: In the manner done here, I think the Chief Justice means, not through the impeachment provisions.

Mr. Stark: --Oh.

Unidentified Justice: But to remove him the way he was removed here.

Mr. Stark: Well, I get a new ingredient.

Unidentified Justice: Well, yes, Just--

Mr. Stark: One is on embezzlement, and one is on speech.

Unidentified Justice: --Yes.

You'll have to answer... I think you can let each one of us speak for ourselves, and perhaps all of us will let one another do that.

Why don't you try to answer my question?

Mr. Stark: Your hypothetical, as I understand it, Mr. Chief Justice, is if he was caught embezzling, would the trustee--

Unidentified Justice: No.

You've been peppered by a number of questions.

My question is this: supposing he were caught or doing exactly what he was doing, speaking in opposition to trustee policy at this meeting, do you claim that the trustee, if there had been no Title 1, do you claim that the trustee lacked authority under either the union constitution or bylaws to fire him for doing that?

Mr. Stark: --Oh, absent Title 1, then the trustee could do that, because that would put us back into pre-LMRDA days.

Unidentified Justice: And so you agree the trustee could do that, except for Title 1?

Mr. Stark: That's correct.

Unidentified Justice: Okay.

Mr. Stark: And the LMRDA.

In fact, the intent of Congress as stated in the preamble to the LMRDA is to correct those very defects, and to correct the very sins that occurred here.

The--

Unidentified Justice: xxx before or after LMRDA could have provided that a trustee, if he wanted to remove somebody, had to have good reason.

It could have... the constitution itself could have provided that he couldn't remove an elected official, for example.

Mr. Stark: --Well--

Unidentified Justice: Did it?

It didn't.

Mr. Stark: --Well, I think you're driving at one of the sacred principles of labor unions and collective bargaining agreements, and that is no removal except for just cause.

And purportedly, the Sheet Metal Workers' constitution enunciates the same thing, but in this case, they did not provide it.

They claimed that by virtue of the trustee, they had plenary powers, as they phrase it, and he could do anything he wanted.

Unidentified Justice: Well, I take it that you suggest that we decide this case on the assumption that absent Title 1, the trustee could have done what he did here.

Mr. Stark: Absent Title 1 and prior to the LMRDA, he could have done this.

That is correct, and that is what the LMRDA was passed to preclude occurring, that the trustee in this case had no greater authority than any other officer, and the LMRDA... and in fact, Petitioners admit that they had to go to the membership to get a dues increase under Title 1 of the LMRDA... and then on the other hand, they turn around and say: well, we don't have to respect Title 1 under the LMRDA, we can just go ahead and remove an official because he spoke out against something that displeased one of the officers.

That is not what the LMRDA is.

Unidentified Justice: What do you say about... don't you think there was, in Finnegan, that... I find a lot in Finnegan that says that Title 1 isn't violated unless you infringe on members' rights as members.

Mr. Stark: Yes.

Unidentified Justice: Rather than as officers.

Mr. Stark: That's correct.

In fact, in Finnegan, they... that phrase is repeated several times.

But in this particular case, I would suggest that--

Unidentified Justice: They didn't... they didn't remove this gentleman, your client, as a member, or even attempt to.

They just removed him as an official.

Mr. Stark: --But I would suggest, Your Honor, that making that distinction in this case is artificial and strained, because if the membership elects a person to speak out in their behalf on a certain policy issue, and a minority pulls a coup, and boots him out of office, does that not affect the membership right to have a spokesman of their own choosing?

And I would point out that Finnegan also states that the Act's primary objective was ensuring that unions would be democratically governed and responsive to the will of the membership.

And that being the case, how can you have a union that is democratically governed and responsive to the will of the membership if you have one dictator, either president, trustee, or business manager, who says: I disagree.

We're going to get rid of that majority opinion.

And I think that this is the very thing that was also pointed out in Finnegan, that where you're dealing with a duly elected representative of the membership, that it tips the balance in Lynn's favor.

This is also spelled out in Finnegan, and I would--

Unidentified Justice: Mr. Stark, is it critical to your case that the issue involved was, was the question of dues increase?

Suppose the issue had been what terms are we going to negotiate for in the next contract?

Suppose that had been the issue.

Would you still be here?

Mr. Stark: --I'd still be here.

Unidentified Justice: So it isn't--

Mr. Stark: Because that is a matter that the membership... that was brought up at the membership at an open meeting, and saying: here's one proposition, we want to go for wage increases and the other one says: no, we want to go for fringe benefits.

The membership takes a vote, people speak pro and con, the membership votes and says we want to go for wage increase, then you don't turn around and boot out of office those who spoke on the other side, just because you don't like them.

Unidentified Justice: --Even though the trustee, as I understand it, would have the authority to say: we're going to go for better working conditions rather than a wage increase.

Isn't he authorized as part of his trusteeship to, to run the union to that extent?

Mr. Stark: Well, again, the trustee has no greater authority than the other officers of the union.

Now, the trustee could in fact say: I don't want to go to the membership with this issue.

I want to go for wage increases, and that's it.

And that's what we're going to negotiate.

He runs the risk of bringing it back to the membership for a vote, and having various people speak out on it, including perhaps some of the negotiating committee, which often happens, and having the membership turn it down, say: no, we want fringe benefits.

The officer--

Unidentified Justice: But he can't fire them for not supporting him on that point, any more than he can fire them for not supporting him on this point of dues increase?

Mr. Stark: --That is correct.

As long as he's a duly elected officer, which is altogether different situation from Finnegan... altogether.

I would suggest to the Court that what the Petitioners in this case are seeking is to rewrite Title 3 to restore practices that Congress specifically legislated against.

And I would also like to emphasize the fact that we live in a representative democracy.

And Congress in passing the LMRDA sought to apply that to the labor organizations.

And Title 4 would be for nought if minority views could be silenced by immediate reprisals that occurred in this case.

And I would like to point out to the Court what those immediate reprisals were.

Within a matter of days, not only was Mr. Lynn booted out of office, he was newer dispatched for work, notwithstanding his A classification, and to this very day--

Unidentified Justice: That's not before us, though, is it?

Mr. Stark: --No, it's not, Your Honor.

But I make this point because we are dealing with a summary judgement in the court below, and the Court below in the Ninth Circuit, emphasized the fact that this was a practice on the part of the defendants to stifle dissent and to stifle debate and the antithesis of democratic operation of the unions, and remanded it back to the District Court to hear evidence on those issues that Mr. Lynn alleged, which is at pages 9 and 10 of the record, the joint appendix, in his complaint, that those were viable, genuine issues of material fact to be litigated.

And that's the reason that I raise it here now... is on that basis that the summary judgement was reversed quite properly by the Ninth Circuit and sent back to the District Court to hear evidence on that point, because Mr. Lynn was in effect not only kicked out of office, he was kicked out of the hiring hall, and has never been dispatched for work.

And, I think too, that the results were immediately achieved.

After Lynn was disciplined, the trustee went back for a fifth vote for a dues increases and finally got it.

And I think that's a very important fact in this case.

But I think the most important part is what this Court recognized in Finnegan, that unions must be democratically governed and responsive to the will of the membership, and this is exactly why Congress passed the LMRDA.

In their preamble, they pointed out that.

Congress found that very often, labor union members were not allowed to choose representatives of their own choosing, and that the labor unions were not paying due regard to the rights of the individual employees.

And the LMRDA was passed to correct that.

And here we have a situation where a majority of the union members elected Lynn on a specific platform, expecting him to speak out on fiscal responsibility.

When he did so, a minority in the union... albeit under purported power to disregard Title 1 of the LMRDA... booted him out of office, much to the chagrin of the majority of the members at tending that union meeting and voting and saying no dues increase.

This is not a trusteeship issue, for indeed, this is... if it were a trusteeship issue, it would be one of first impression, as far as I can determine, before any federal court.

It would be coming to the Supreme Court for the first time for resolution.

That's not the case.

We're dealing with a free speech issue under Title 1, where a membership right was directly attacked by getting rid of the duly elected representative who was acting as spokesman for the members in that union that elected him.

They expected him to.

Thank you.

Unidentified Justice: Thank you, Mr. Stark.

Mr. Fisher, you have five minutes remaining.

REBUTTAL ARGUMENT OF DONALD W. FISHER

Mr. Fisher: Thank you, Mr. Chief Justice.

Let me make only the observation that many of the facts that Mr. Stark spoke on are not part of the facts in the record.

This again is a case that was submitted on cross motions for summary Judgement, and the uncontroverted facts are before the Court in the appendices.

An unverified complaint was filed by Mr. Lynn.

Those facts are not assumed to be true with respect to a motion for summary judgement.

This was not the granting of a motion to dismiss, this was a case decided on the basis of a motion for summary judgement.

Now, on the facts of record, to answer the question that some of the Justices asked about, it is clear in the appendix at the joint appendix, at pages 42 and 43, that the general president of the international union, when he imposes a trusteeship, has the power to take such action as he deems necessary to protect the interest and welfare of such local union, and this association and the funds and property and membership thereof, including but not limited to the authority to suspend local union or council officers, business managers or business representatives, fill vacancies in such offices with any representatives of this association or members of such local union, or call elections for that purpose, and impound the books, records, funds and property of any such local union.

And the District Judge in the appendix to the petition for the writ of certiorari, at page 33A, found as a uncontroverted fact that the general president delegated to Hawkins as trustee the authority in the constitution under article 3, section 2(c), and he quotes from the constitution,

"To take such action as he deems necessary to protect the interests and welfare of local 75, its funds, property and membership, and the interest and welfare of the international association, including but not limited to the right to suspend local union officers, the business manager and/or business representatives to fill vacancies in such positions. "

Unidentified Justice: Well, with all that, was all that you read from that purporting to fine a union member for opposing a dues increase?

Mr. Fisher: Well, there is no fine--

Unidentified Justice: Yes or no?

Mr. Fisher: --No.

Unidentified Justice: And suppose this speech that this man made didn't have any connection with his job as a union agent.

Mr. Fisher: No, I--

Unidentified Justice: He just got collective bargaining, administration, and things like that, collective bargaining duties, and the question of a dues increase has nothing to do with his job.

His interest then is as a member.

Why wasn't he speaking as just a member, and was then disciplined for it by losing his job, that had nothing to do with dues increases?

Mr. Fisher: --Well, he was required to operate and work at the direction of the business manager.

Unidentified Justice: Well, that... as far as I read, what his job was, he was certainly had to do his job as described in the constitution.

Mr. Fisher: Yes, sir.

Unidentified Justice: And to do it the way he was told to do it.

Mr. Fisher: Yes sir.

Unidentified Justice: But it had nothing to do with dues increases.

Mr. Fisher: Well, the policy that was formulated by the trustee... the trustee was sent in by the general president.

The trustee was to formulate policies to rehabilitate the affairs of this local union.

This was the policy that was decided upon by the trustee.

It was correct that this policy could not be self-implemented.

This policy had to be submitted to the membership for their approval, because they wanted a dues increase.

Unidentified Justice: I don't blame the trustee for trying to get as much support as he could in the membership.

And he could campaign for it.

But I don't know why he was entitled to insist that the business agent do anything more than an ordinary union member.

Mr. Fisher: Well, because he was his agent, and his personal representative.

Unidentified Justice: Not for that purpose.

He was his agent for doing what business agents do.

Mr. Fisher: Business agents attempt to follow the policies that are set down by the board of... the executive board of the local union, and when the executive board of the local union is really not operating functionally because of a trusteeship, then the policy of the local union is set by the president.

Now, the members have the right to vote to decide the issue.

But in terms of taking a firm position as to whether he is going to oppose it, and try to thwart it--

Chief Justice William H. Rehnquist: Thank you, Mr. Fisher.

Your time has expired.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.

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Reed v. United Transportation Union - Oral Argument

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Reed v. United Transportation Union

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87-1031_19881102-argument.mp3

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Transcript:

ORAL ARGUMENT OF JOHN W. GRESHAM ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We'll hear argument next in No. 87-1031, G. P. Reed v. United Transportation Union.

Mr. Gresham, you may proceed whenever you're ready.

Mr. Gresham: Mr. Chief Justice, and may it please the Court:

In this case the Court must determine whether it will apply its longstanding practice of borrowing the analogous State statute of limitations and apply that to a free speech claim under Title I of the LMRDA, or whether it will apply the narrow exception to that normal borrowing procedure which was described in DelCostello v. Teamsters, and in applying that exception, then select the six-months' limitation period of 10(b) of the NLRA.

The facts in this case indicate that it is a prototypical Title I claim.

It is retaliation against a union member for protesting both the improper use of union funds and for opposing a dues increase in the local.

What are these facts?

Well, Mr. Reed was the treasurer of his local.

He discovered that the general chairman was obtaining funds that he was not entitled to.

He was getting funds for the local for time for which the company had paid him.

Mr. Reed demanded repayment of this money from the general chairman.

At the same time, during the same time period, he opposed the general chairman's efforts to get a dues increase in the local.

Reed went so far as to tell the auditor from the international about the general chairman's double dipping, getting union funds for work where he'd been paid by the company.

What was the auditor's response?

He didn't have time to think about that sort of matter.

The auditor, however, then demanded that Reed pay back funds that he had received from the local, funds that had been approved by the local after Mr. Reed had taken time from his job to perform duties for his union.

The reason given: Mr. Reed had not received prior approval; that is, he had not gotten their approval prior to doing the work.

The problem with that response?

There had never been a prior approval requirement.

At the same time that Mr. Reed was being required to repay this money, one of the general chairman's subordinates, the vice general chairman, went to another dissident union member, told him they could get him too, but at that point, they were just after Mr. Reed.

The vice chairman also suggested that perhaps this other union member might want to withdraw from the race for national delegate where the general chairman was also running.

What did Mr. Reed do?

He paid back the money as demanded.

It was equal to about six months of the small stipend that he received for his usual duties as treasurer and he protested to the international president, Mr. Hardin.

And Mr. Hardin denied the protest.

Mr. Reed then tried to apply the same prior approval policy to reimbursement requests by other local members.

He was chastised by the international president and required to pay the money in spite of the fact there was no prior approval.

This discriminatory treatment ultimately led Mr. Reed to file this claim, and the Title I claim, we argue to this Court, is not one which necessitates departure from the longstanding practice of this Court in labor law, as the Court said in DelCostello, as otherwise of borrowing the appropriate state statute of limitations.

The reason that there is no need for such a departure is that the conditions present in DelCostello are not present in this case.

The claim in DelCostello that hybrid duty of fair representation, Section 301 claim under Taft Hartley, unlike the Title I claim, which is simply a straightforward claim, a union member suing union for violation of rights under Title I, this DFR 301 claim directly challenged the collective bargaining agreement.

And the private resolution of disputes under that agreement which are at, as this Court indicated in DelCostello, at the center of the labor law policy passed by Congress in the NLRA and Taft Hartley.

Indeed, I think the hybrid DFR 301 action that was brought in DelCostello is perhaps the most direct challenge that can be made to that consensual process.

What is the worker asking there?

He's asking the federal court to set aside the private dispute resolution.

His basis, to get to court and to avoid the requirements of exhaustion and the way the court would normally look at the arbitration, what must he do?

He must show that the union has failed to properly represent him.

Not only that, he must show that the arbitrator made the wrong decision and, in fact, he was entitled to relief.

He has a very heavy incentive to sue both, the union and the employer, for otherwise he will not collect his full measure of damages.

As this Court indicated in DelCostello, the... it spoke to its concern because there was no doubt that there was an unquestioned impact by the hybrid DFR 301 action on the consensual and private dispute resolutions process, and I think that it was that fact that drove the Court to apply the exception which it did in DelCostello.

This Title I claim, however, does not involve a work place dispute as did DelCostello, DelCostello being that situation where Mr. DelCostello had been terminated from his job.

The other plaintiffs in DelCostello had varying disputes over the work place, layoffs, poor job assignments.

It does not implicate the collective bargaining agreement.

The employer is not a party.

Rather, the claim is very straightforward.

The union member asserts that the union has violated his rights under the union members' bill of rights, Title I of the LMRDA.

This bill of rights was promulgated because of policy considerations present in neither the NLRA nor the LMRDA.

Congress, at the time of the passage of Title I, had become aware that some unions were acting in a very autocratic fashion and, indeed, some unions were corrupt.

Congress was casting for a way to deal with these problems.

One would have been far more direct government interference, but Senator McClellan rejected that approach when he put forward the labor union members' bill of rights.

His approach was by granting union members the rights of free speech, of assembly, of due process, of participation in elections, of the vote, that by applying the very model which had worked so well for this country in the relationship between citizen and government to the relationship between union member and union, that the democratic process itself would correct the abuses which Congress had found.

I think you can see how wide Congress sought to sweep and that it applied Title I not just to unions that are governed by the NLRA or unions that are governed by the Railway Labor Act but, indeed, to all unions, even the agricultural unions which are not subject to the other federal labor policies.

At the time of the passage of the LMRDA, commentators realized that this democratic process which Congress sought to establish was a fragile one.

As Archibald Cox recognized in his article in the Michigan Law Review, most men are reluctant to risk the cost incurred in vindicating those intangible rights that were set out in Title I, and those who sued under Title I ran, in Mr. Cox' words, enormous risk for they were going up against the power, the entrenched power of the union.

But as this Court has noted in Hall v. Cole, the principal beneficiary of these Title I actions is not the individual union member, it is the union membership as a whole, it is the general public interest that labor unions in this country be run democratically.

Indeed, as Justice Marshall in rejecting a six-months' limitation in a case involving similar rights asserted against the government noted, these are the very claims which belong in court.

They do not or should not be curtailed by a short statute of limitation.

Secondly, what about the practicalities of the litigation because that again was a factor which concerned this Court in DelCostello and again drove it away from the usual practice?

I think the practicalities of this litigation indicate that there is a need for the longer state statute of limitations, the analogous statute in this case being the personal injury statute in North Carolina.

Unidentified Justice: And how long is that, Mr. Gresham?

Mr. Gresham: That is three years under [GS1-51-5.]

It is a general statute of limitation for personal injury.

That... that longer state statute of limitations is the more appropriate vehicle, again quoting the language in DelCostello, for this bit of interstitial lawmaking.

As both Archibald Cox recognized in his article and Judge Coffen recognized in his decision in Doty v. Sewall where he applied the normal practice and rejected any exception, there are good reasons for a union member who has suffered internal union harassment not to come forward immediately.

After all, he still has his job.

This is not a work place dispute.

It's a dispute over his rights in the union.

Maybe if the union member keeps quiet, the problem will go away, or maybe someone else will step forward.

After all, I think the union member must always keep in mind those in power, as Judge Coffen indicated, do have long memories.

Yet, if the union membership as a whole and the public interest is to be served, the union member must step forward, and when he does, what must he do?

He must in most cases find and pay a lawyer.

And what must the lawyer do?

The lawyer must investigate.

The lawyer... the lawyer must ensure himself that the facts are there sufficient to meet any challenge under Rule 11 and file his complaint.

That is different from the situation in DelCostello.

The DelCostello plaintiff, Mr. DelCostello, had already lost his job.

He had already lost his arbitration.

He was casting about for one more forum which might bring him relief and might get him back his job and his wages.

Additionally I would note that there were practicalities in the DelCostello litigation after the case was filed.

It's a problem of the two different actions with the two different conceptual underpinnings.

In the issue of damages, as this Court has noted, one collects damages from the union only to the extent that the union has created damages over and above the actions of the employer.

If you apply the short statute of limitations in DelCostello, the 90-day arbitration period, to the action against the employer, you've truncated the damages.

If you apply the long statute, the two-year statute of limitations that this Court found was the most analogous statute to the... for the duty of fair representation claim, you again run head on into the problems of the effect and interference that that long statute of limitations would have on the private dispute resolution process that is at the heart of the collective bargaining agreement, again, not something that you have in this case.

And the difference, the difference in the conceptual underpinnings of these two statutes, brings me to a third point.

In DelCostello there was simply no good state analogy.

The Court thought perhaps after wrestling with the issue in Mitchell, 90 days, the very short statute of limitations for arbitration in most states... some states had 60.

I think some had perhaps a bit more... was not sufficient.

It did not allow the union members sufficient time to come forward if you did have a legitimate grievance.

And the two-year malpractice statute had no... no connection at all with the action against the employer.

And again, if it were implied... if it were applied, it would again cause that disturbance with the underlying collective bargaining.

I would note that that interference is set forth in the NLRA and in the Taft Hartley Act.

And in the DelCostello case, those were the acts which gave Mr. DelCostello his claim, the act or the action inferred against the union in this Court and the duty of fair representation and the specific statutory right under Section 301.

Those statutes brought forward the problem, the labor policies that were being interfered--

xx reach the issue of is there a limitation other than the appropriate state statute of limitations for the factors I've set out.

But should the Court... should the Court look to see if Section 10(b) is analogous, I think the Court will find that that close analogy... clearly a closer analogy is I believe the language of the Court in setting out its standards in DelCostello... is not present here.

First of all, what did the Court find with regard to the DFR hybrid action and the unfair labor practice statute of limitations?

They found, if they took the NLRB's position, a complete overlap of those claims.

The Court said, not... not yet ready to decide that point, we at least understand that there is a substantial overlap.

Yet, with the Title I claim, which involves the internal union procedures used to violate the rights of the union member, both the NLRB and this Court have consistently held that those internal union procedures and that discipline, no matter what the motive, is excluded from the reach of the unfair labor practice.

As recently as Pattern Makers' I think in 1985, this Court reaffirmed that the union in its internal procedures was not subject to an unfair labor practice.

Indeed, the amicus for the respondent, the AFL-CIO in that case, argued that that exception reached so broadly that the NLRB could not reach the situation where the union tried to discipline members that resigned.

I would note that that position is entirely opposite from the one that the AFL-CIO takes in its amicus brief here today where they talk of the substantial overlap of the two claims.

Indeed, I think a shift of that major proportion is such as to make the argument of the AFL-CIO what they term in their brief "content-free".

Additionally, the policy considerations of Section 10(b), as this Court noted in DelCostello, were specifically attuned to that balance which the Court was trying to find in DelCostello, the balance between the worker, the worker with the work place dispute, trying to assert his claim and the need for speedy resolution.

The Court found that that was what Section 10(b) was attuned to and that that's what was at issue in DelCostello.

That is not what is at issue in this case.

There is no work place dispute.

There is no dispute over the collective bargaining agreement.

There is no effort to set aside that private resolution of the dispute.

Thus, Section 10(b) is simply not an appropriate analogy for this case.

Even if the Court were to determine that given the practicalities of the litigation, given the federal policies, given the available limitations, it had to look elsewhere, it is not a clearly more appropriate statute of limitations.

Rather, it is an action by a member of a private organization to protect his federally protected rights and to ensure that his organization functions democratically.

DelCostello in some way does apply to this case.

It applies in its directive that the prior practice of borrowing state statute of limitations is to continue in labor law as elsewhere unless the stringent conditions of DelCostello have been met.

They have not been met here, and the three-year statute of North Carolina is to apply.

I will reserve my additional time for response, if I may.

Unidentified Justice: Thank you, Mr. Gresham.

Mr. Miller, we'll hear now from you.

ORAL ARGUMENT OF CLINTON J. MILLER, III

Mr. Miller: Mr. Chief Justice, and may it please the Court:

The rights sued upon that are at issue in this case today do not arise out of the federal Constitution, nor do they arise out of the civil rights laws.

Rather, they arise out of a clearly stated continuum of the national labor policy in federal statutory labor law.

The facts have not been established in this case to the degree that my opponent has discussed them today.

For instance, there is much dispute with respect to the characterization of the conduct of both the Plaintiff in this litigation, the Petitioner here, as well as the general chairman.

Moreover, the--

Unidentified Justice: Was this case tried?

Mr. Miller: --No, Your Honor.

It was dismissed on summary judgment.

Unidentified Justice: xxx a statute of limitations?

Mr. Miller: That is correct, Your Honor.

Additionally, the Title V claim that the Plaintiff brought in the district court below was dismissed as procedurally defective.

When the matter was granted interlocutory review on the DelCostello statute of limitations question, there was no cross-appeal with regard to the Title V claim that had been dismissed by the district court.

Unidentified Justice: So, then we assume that the allegations set forth in the complaint are true.

Mr. Miller: That is correct, Your Honor.

The only reason that I mentioned it was that the... there were counter-affidavits that were filed in opposition to the motion for summary judgment.

But I recognize, Your Honor, everything must be construed in favor of my opponent since we were the moving party with regard to limitations grounds.

The Petitioner, as well as the United States, and the other amici supporting the Petitioner's position, would have this Court narrowly construe its decision in DelCostello out of existence by failing to give effect to all that was said in that decision and by cutting too finely the language chosen to be analyzed.

In DelCostello, while this Court noted the general rule that in the absence of a specific statute of limitations in federal statutory law, it is not to be assumed that Congress intended that there be no statute of limitations, but rather to borrow from some other source, usually state law.

It further noted that state legislatures do not devise their statutory statutes of limitations with... with national interests in mind.

In so doing, this Court noted that United Auto Workers v. Hoosier Cardinal, the bench mark that we're using here for the normal rule of application of a state statute of limitations, involved a straight Section 301 LMR claim by a union, not a member, against an employer that did not at all involve arbitration.

In those circumstances, it's hardly surprising that the ordinary state statute of limitations with regard to contracts was applied.

We learned later that the reason the six-year oral contract statute was applied was because this Court felt the 15-year written statute of limitations on written contracts did not provide sufficiently for the rapid resolution of labor disputes.

Labor disputes were spoken of generically.

DelCostello did, in fact, involve a hybrid suit, that is, a suit by the member against his employer for breach of the contract and a suit against his union for breach of the duty of fair representation implied in the law owing to the exclusive representative status that the organization has.

This Court found that, obviously, those claims were inextricably interdependent because of its previous decisions in Vaca v. Sipes and Hines v. Anchor Motor Freight for that reason, deciding that there could not be one statute applicable to the employer without a comparable statute being applicable to the union in the case if the party were to be afforded complete relief.

The Court noted that these difficulties cannot be tolerated in the Court's view where there is a federal statute that is designed to accommodate similar interests.

And that's the key here.

Has Congress spoken clearly enough with respect to Landrum Griffin Title I rights?

We submit that it has.

In DelCostello, it was very important to this Court that the National Labor Relations Board has consistently found all breaches of the duty of fair representation to constitute unfair labor practices, thus triggering the operation of Section 10(b) with regard to any charge filed with the general counsel at the Board.

However, the Petitioner, as well as the amici on that side of argument, totally ignore in their briefing the fact that the National Labor Relations Board has taken a consistent view, not always agreed to by the AF of L-CIO, that any union coercion constitutes the basis for an appropriate 8(b)(1)(A) charge.

There is ample precedent for the National Labor Relations Board having so held, and even as late as 1985.

This Court in DelCostello noted that this Court itself has never passed upon the validity of that Board policy, that is, that all breaches of the duty of fair representation are unfair labor practices.

Nonetheless, that wasn't important to this Court because the family resemblance was there.

We submit that since the Board also has found any form of union coercion that would be comparable to a Landrum Griffin Title I charge to also constitute an unfair labor practice, it also bears a family resemblance, thus triggering the application of Section 10(b).

Unidentified Justice: xxx material in this record then to file an unfair labor practice charge?

Mr. Miller: Yes, Justice White, if the Plaintiff had reduced to writing his allegations that he made--

Unidentified Justice: Yes.

Mr. Miller: --then he could have filed an unfair labor practice charge with the general counsel.

Unidentified Justice: And he would have had to do it in six months?

Mr. Miller: That is correct, Justice White.

He would have had to have filed it within six months.

Unidentified Justice: And if he also sued, you say they both should have been dismissed on statute of limitations grounds.

Mr. Miller: That is correct, Justice White, and that raises the important point.

If he couldn't file it as an unfair labor practice charge, why should he... as the National Labor Relations Board clearly holds that he can under its precedent, why should he be permitted to go to court?

The facts of this case are... are truly peculiar on this point, Justice White, in that--

Unidentified Justice: Because he... you concede he could have gone to court if he had filed it on time.

Mr. Miller: --That is--

Unidentified Justice: So, there wasn't exclusive... there is not exclusive jurisdiction.

Mr. Miller: --No, Justice White, I am not intimating that there is.

I... I'm merely noting that just as the Board has consistently held that all breaches of a duty of fair representation are unfair labor practices, although most of that ends up in litigation, so too it has consistently held that any form of union coercion with regard to Landrum Griffin rights or the exercise thereof are also unfair labor practices, thus triggering the application of 10(b).

In this case, the very--

Unidentified Justice: But if a union wants to file a breach of duty case against the union, it has to do so in six months?

Mr. Miller: --I'm sorry, Justice White?

If a member?

Unidentified Justice: If a union member wants to sue a union for breach of its duty of fair representation--

Mr. Miller: Yes, Justice White.

Unidentified Justice: --he can go right to court.

Mr. Miller: That is correct, Justice White.

Unidentified Justice: And he must do it in six months?

Mr. Miller: He must do it within six months from the date of accrual.

Many of the defects that are discussed here today by the Petitioner are satisfied in the accrual analysis.

For instance, an action has been consistently held by the circuits to accrue only when a member knows or in the exercise of reasonable diligence should know of the acts constituting a claim of breach of the duty.

With respect to investigation, that won't occur until adequate investigation and knowledge is present.

In this case the counsel sitting at this table for Petitioner wrote a letter to the president of the union... this is in the record... stating that since the organization had not adjusted matters satisfactorily to his... to his client, that he had advised his client to sue within six weeks, stating that... that suit... that he had recommended to his client to sue by September 15, 1983.

Yet, this... this counsel and Mr. Reed waited nearly two years after the sending of that letter.

This case doesn't present a very good one for retention of counsel as a factor to be considered because counsel was already retained.

The action did not accrue until the counsel wrote a second letter to the organization noting his dissatisfaction with the resolution of the matter with the organization itself.

Moreover, the factors with regard to practicalities of litigation that are mentioned by the Petitioner were also considered by this Court in DelCostello, the very same factors.

It was for that reason... that... that is the presence of the very factors that we're talking about today... that this Court chose to apply the six months from Section 10(b) of the LMRA rather than the shorter arbitration statutes from the states.

With regard to those litigation factors, this Court determined that was just insufficient time.

We would submit that therefore the presence of the factors that are mentioned by the Petitioner have already been considered by this Court and have already been determined to be fully served by applying Section 10(b) of the Act.

This Court also observed in DelCostello that it was not only the private settlements under the labor laws that were at issue, but also the formation of the agreement which is too little recognized by the Petitioner and amici on that side.

Collective bargaining consists of negotiating the agreement and administering that agreement.

As the court below and as the Third Circuit noted in the Steelworkers case, which is the principal case for the pro-Costello... DelCostello view here, if internal problems are permitted to fester too long, union officials become overly concerned with regard to their political struggles and that detracts from their ability to deal with management.

In other words, whether a breach of either Landrum Griffin or the duty of fair representation occurs internally or externally, the effect is the same.

Both have been held by the National Labor Relations Board to constitute unfair labor practice charges.

There is no reason to treat them differently.

Indeed, the rights that are protected by Landrum Griffin are the very same rights that are at the core of the federal labor laws, the Section 7 rights that were granted by the Wagner Act.

In... in Taft Hartley, the Congress acted to ensure that those rights, the rights to engage in concerted activity, were not taken away by unduly harassing tactics by unions, added a whole class of unfair labor practice charges in Section 8(b).

In 1959 with Landrum Griffin, the Congress again was concerned that the rights that were so granted and so insulated from harassment by Taft Hartley would not be driven by undemocratic processes, but we're still talking about the rights to collective... to collectively bargain.

We're not talking about constitutional rights.

As this Court soundly noted in Steelworkers v. Sadlowski, the bill of rights in Landrum Griffin are not coextensive with First Amendment rights because the offering of the bill of rights by Senator McClellan on the floor was modified by virtually unanimous adoption of a floor amendment which permitted the union reasonable regulation of those rights.

This Court does not permit reasonable regulation of First Amendment rights.

And in that regard--

Unidentified Justice: How... how does that bear on the statute of limitations issue?

Are you suggesting that constitutional rights, because they're at the top of one hierarchy, must have the longest statute of limitations?

Mr. Miller: --Not at all, Mr. Chief Justice.

I'm merely suggesting that constitutional rights will be handled differently because there's an appropriate state statute.

In other words, this Court has determined with regard to, for instance, the civil rights acts, 1983 and 1981, that those are more in the nature of personal injury, and the Constitution is at the core of the enforcement of those rights.

My point here is that one can't leap to the conclusion that just because the statute says bill of rights, that that automatically makes it civil rights.

These are labor law rights, federal statutory labor law rights.

And this Court has consistently made that clear.

By quoting Professor Cox that Landrum Griffin being a product of political compromise, one can't absolutely apply every word, but must realize the context in which it arose.

This Court has consistently done that and has recognized that those rights are not coextensive with the First Amendment.

Again, it just bolsters the argument that the organization has here that this class of rights are labor law rights.

They all relate back to the right to bargain collectively.

They all were an attempt to assure democratic processes within the union so that bargaining collectively meant something.

The union can't, by its reasonable regulation, take away or detract from those rights.

If it does, it perforce commits an unfair labor practice and it should be dealt with appropriately but within a relatively short span of time because the rapid resolution of labor disputes of any character, internal or external, are at the core of the national labor policy whether they deal with private settlements or whether they deal with the formation of agreements initially.

Some lower courts prior to this Court's decision in Plumbers', as observed by the AFL-CIO in this case, felt that one had to analyze the propriety of a Section 301 action to enforce a union constitution.

This Court had little difficulty in holding that Section 301 was available as a remedy for a violation of a union constitution.

For the same reason that this Court found Section 301 available to remedy a violation of a union constitution, we suggest that Section 10(b) amply supports an appropriate limitations period for enforcement of the rights here.

It should be a consistent right.

It should be the same time period for all violations, and it should be Section 10(b) because that governs unfair labor practice charges, and the National Labor Relations Board has consistently held violation of Landrum Griffin Title I bill of rights claims are susceptible to being filed as unfair labor practice charges.

Whether these rights can be characterized as economic or as civil, the point is that they're part of the fabric of federal statutory labor law which is intended to protect the fundamental statutory right to act collectively.

That demands quick resolution so that the collective bargaining relationship remains stable.

It doesn't have to deal with private settlements.

It deals with the formation and maintenance of the agreement itself.

Overall an application of Section 10(b) as the appropriate statute of limitations in this case will support the federal labor law policy of quick resolution of labor disputes.

The application of the three-year North Carolina personal injury statute will not promote that interest and is not related thereto, it being at most related to civil rights or constitutional rights actions which are not at issue here.

These are labor rights.

These rights simply cannot be divorced from the statutory background in which they arise.

The federal statute of limitations is obviously more appropriate.

The federal policy at stake is clear.

The practicalities of litigation are no different in this matter than they are in actions for breach of the duty of fair representation.

This Court chose Section 10(b) in DelCostello.

It should choose it here mandating affirmance of the decision below.

Thank you very much.

Unidentified Justice: Thank you, Mr. Miller.

Mr. Gresham, you have 10 minutes remaining.

REBUTTAL ARGUMENT OF JOHN W. GRESHAM

Mr. Gresham: I think the most important point that I would make on rebuttal is the great disagreement I have with Mr. Miller's contention with the question from Justice White that this would constitute an unfair labor practice that Mr. Reed could have, in fact, gone to the Board.

I think this Court's law and cases... I think the very recent decision of the Third Circuit in NLRB v. Local 139 which said that the 8(b)(1)(A) should not be interpreted so literally as to make it a unfair labor practice to enforce compliance with internal rules and policy is precisely what is at fact here.

The government in its brief makes exactly the same point.

There is very, very little overlap between the Title I claim and the unfair labor practice claim.

The year after Title I was passed in its 25th annual report, the Board itself said we don't reach these disputes, these internal union matters, even if there is a bad motive.

For... for the union to now argue essentially, as I understand it, that Title I really wasn't needed, that... that Senator McClellan's bill was simply to in somehow reinforce rights that were already granted, I think would make a mockery of the legislative history of Title I.

Unidentified Justice: Wouldn't you think there are some things that broadly are matters of internal union business that are unfair labor practices?

Mr. Gresham: There are and I have been able to identify two areas where the Board has taken those.

One is where they beat the fellow up.

The second is where they try to discipline because he has gone to the Board or he has gone to the Department of Labor before.

They protect their jurisdiction.

Unidentified Justice: Well, and are... and are those... are those suable on without going to the Board?

Mr. Gresham: They would be suable on as a Title I claim, yes.

Unidentified Justice: Yes, exactly.

And even in those circumstances you think the six months should not apply?

Mr. Gresham: That is correct because there is such a minute overlap between the two.

We don't have to reach that in this case because I think it... it is clear that this type of discipline simply would not constitute an unfair labor practice under any of this Court's decision, under the recent Third Circuit decision, under the Board's own language.

The proviso... I did not hear Respondent mention that all the proviso that is... that is included in 8(b)(I)(A) which is that it does not reach these mechanisms.

And I think that... that keeps this from being an analogy.

And I think the important point there is that when this Court looked in DelCostello to see whether 10(b) should apply, I think the terms this Court used was "substantial overlap".

I would... I would submit to this Court that at most in this case there is a very minimal overlap.

I think as... as... as the Solicitor General indicated in his brief, these actions vindicate important public rights.

There is no basis for this Court to depart from its usual practice.

None of the problems noted in DelCostello are present here.

There is no interference, direct interference... and I believe again that is the language of this Court in DelCostello... with the collective bargaining agreement.

Therefore, the usual practice is the practice that is available here.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Gresham.

Unidentified Justice: The honorable Court is now adjourned until Monday next at 10 o'clock.

Attribution:

The OYEZ Project

Featured:

West v. Conrail - Oral Argument

Fri, 09 Jan 2009 14:48:30 +0000

Case:

West v. Conrail

Media File:

85-1804_19870225-argument.mp3

Related Transcript:

1986_85_1804_argument.xml

Transcript:

Argument of Paul Alan Levy

Chief Justice Rehnquist: You may proceed whenever you're ready.

Mr. Levy: Mr. Chief Justice and may it please the Court:

This is a so-called hybrid action by an employee against his union and employer, against the employer for breach of a collective bargaining and against the union for mishandling a grievance which it had the exclusive authority to prosecute.

This Court has developed the hybrid cause of action over the past 40 years in cases beginning with Steele and running through Vaca and Hines, Chosek v. Omara, Bowen v. Postal Service.

But in the course of developing the cause of action, neither Congress nor this Court had developed a statute of limitations to govern hybrid actions in the course of creating the hybrid action.

Thus, in UPS v. Mitchell and DelCostello v. Teamsters, the Court grappled with the question of what was the most appropriate rule to adopt by analogy to fill this gap in federal law.

Ultimately in DelCostello, the Court made a policy judgment that, as compared to three or six-year limitation periods, which is what were at issue in Mitchell and DelCostello, or a three month statute of limitations, also at issue in Mitchell, a six month limitation period set forth for unfair labor practice charges before the NLRB was the most appropriate and therefore should be used as the statute of limitations for DFR actions, duty of fair representation actions, in district court.

What the Court did not decide in DelCostello was what had to be done within the six month period.

That is what is at issue in this case.

The case arose when Petitioner West was discharged in November of 1981.

Over the course of more than two years, Petitioner was repeatedly assured by his union representative that the union was pursuing a grievance for reinstatement and back pay.

During this period of time he was represented solely by his union, and indeed his union discouraged him from consulting a lawyer on the ground that it would be a waste of money during this period.

In February 1984, West received a notice from Conrail saying that, solely as a matter of leniency, he would be reinstated.

The notice did not refer to the pending union grievance and did not say that the union had abandoned his claim for back pay.

However, in March of 1984 West determined that the union had in fact abandoned his back pay claim.

Now, had West sought to institute unfair labor practice proceedings at the National Labor Relations Board, he could have gone to the NLRB on the last day of the six month limitation period.

He would have had to fill out a few blanks in an administrative form which we have set forth as the last page of our brief.

The form would have been filed and served on the same day, and service would have been effective upon mailing.

Instead, West had to find a lawyer, although he had been unemployed for a period of more than two years.

He had to make financial arrangements to retain the lawyer.

The lawyer had to investigate his claim, draft an eleven page complaint under the strictures of Rule 11, and file suit.

Unknown Speaker: Most of those things we can't make up for just by giving you service time as well.

Do you want us to extend it beyond service time?

Do you want us to add a certain number of days for finding a lawyer?

Mr. Levy: No, we do not suggest that.

Unknown Speaker: Well, so.

Mr. Levy: But we do suggest that the things that have to be done in order to file a complaint are greater than the things--

Unknown Speaker: Well, that's so, but the only one that's relevant here is the service time.

Mr. Levy: --It is in part the only thing that is relevant, although if in fact one of our arguments is that if in fact the Court is going to borrow the service requirement of Section 10(b) as well as the limitations period, then the question will arise, why not borrow the other things that the board has said are all that a charging party has to do in order to file an unfair labor practice claim?

And we propose to draw a line, a clear line, at the limitations period and not go on to the other timeliness rules, including the service rule.

In any event, the complaint was filed within the six month period, but the summons and complaint were not served until three weeks later.

And so the question on which the circuits are closely divided is is the suit untimely on the ground that the service requirement in Section 10(b) should be adopted to govern the case.

Now, in arguing that it should not, we rely first on the normal rule for federal question claims, and in stating the normal rule I recognize that this Court has not dispositively decided the question.

But virtually every lower court to address the question for the past 40 years, as well as the court below, have taken the view that the normal rule is that under Rule 3 filing the complaint satisfies the statute of limitations in a federal question case in the district court.

Unknown Speaker: That's not necessarily true in a diversity case, is it?

Mr. Levy: That's not true in a diversity case.

We rely on the existence of a normal federal rule for two reasons: First, because there is a normal federal rule, it is not necessary to look to Section 10(b), or indeed anywhere else, to fill a gap in federal law, as the Court had to do to pick a limitations period in DelCostello.

And second, because there is a rule, Respondents who seek an exception from the rule bear some sort of burden of showing that the exception is justified, and we don't think that they have shown that an exception is justified.

But even if Rule 3 does not control, we think that the better rule is that filing alone is sufficient.

After all, in DelCostello the Court decided that, given the policies and the practicalities of litigation involved, a six month period was better than a three or a six year period on the long end or a three month period on the short end.

Now, we recognize the consequence of choosing either a filing rule or a service rule is that the statute of limitations will not be exactly six months for both sides.

If the Court requires service, then the plaintiff will be required to file in advance of six months; and if filing alone is sufficient, the defendant will not learn of the suit for some time after six months.

But we submit that the consequences of adopting only the filing rule are on balance more attractive or, I should say, more consistent with the policies and practicalities involved than adopting the whole package of NLRB timeliness rules.

Unknown Speaker: Isn't one practicality that we don't want to have to fight this thing out or have circuit courts try to figure it out every time there's a new borrowing of another statute?

Isn't it desirable, apart from what might be the most equitable thing in this particular case?

Isn't there some desirability of having a more or less uniform rule?

And if we were to adopt a uniform rule, wouldn't the one that seems to be current, wouldn't that be the rule of borrowing the whole thing, including the service?

Mr. Levy: Precisely, and the uniform rule, the traditional rule in the federal courts, is that filing is sufficient to satisfy the statute of limitations, rather than simply looking at each statute of limitations and then trying to discern from the rules adopted by the authority that adopted, that provides the statute of limitations, whether service or indeed something else is required.

Unknown Speaker: But haven't we allowed haven't we borrowed the service rules in the past?

Mr. Levy: The only case in which a service rule has been borrowed is in the diversity context, and there the problem was that it would have been inequitable.

The state provides a cause of action, the state creates a statute of limitations as a limitation on that cause of action, and to allow plaintiffs to come into federal court when they could not come into state court because, for example, service is required as a satisfaction of the statute of limitations--

Unknown Speaker: Has a service rule been rejected in any cases?

Mr. Levy: --Not of this Court, although every Court of Appeals and other courts, or virtually every one, to consider the question has, even though a state had a service rule as part of its statute of limitations, the courts have borrowed only the limitation period and not the service rule in federal question cases.

Now, the union draws a distinction.

It says if the statute of limitations itself does not say requires service, then it is appropriate not to borrow the service requirement which is contained in some other section.

And I would agree that most states, when they draft statutes of limitations, have a list of periods and then perhaps a list of tolling rules, and then another section which says this is what we mean by satisfying the statute of limitations.

But surely, if it is inappropriate to borrow the service requirement in those cases, the mere fact that the service requirement appears in the same section of the United States Code or the state code, so long as it's a borrowed section, shouldn't make any difference, we submit.

That is a distinction without a difference.

And so, yes, the Court is free.

The question has been reserved in the Ragan case and in the Walker case.

The Court is free to decide that service is required, that the borrowing of service is required in federal question cases.

But in doing so, it would be overruling a consistent line of precedent in all of the lower courts, and indeed it would be going contrary to the understanding that we think, given the advisory committee notes back when the rules were adopted and the rules concerning 4(j) in 1983 the drafters of the rule seemed to think that the logical interpretation of the rule, although they recognized that there was an open question, that the logical interpretation of a rule that says an action is commenced by the filing of the complaint, means the statute of limitations is satisfied in that context.

Unknown Speaker: Would that line of cases be overruled if we borrowed the service requirement?

Mr. Levy: It would be all of the lower court cases, but unanimous lower court cases, unanimous understanding.

But you have the power to do that.

Unknown Speaker: Except this one.

Mr. Levy: Except this one.

Unknown Speaker: You mean this is the only this is the only case that borrows the service requirement?

Mr. Levy: In a federal question case, that's correct.

Unknown Speaker: You're just talking about federal question?

Mr. Levy: Just in federal question cases.

Unknown Speaker: What are your other types of federal questions, other than this particular?

Are you talking about the antitrust cases and the 1983 cases?

Mr. Levy: The civil rights cases.

For example, Bomar v. Keyes, Judge Hand's case in 1947, was a civil rights case.

Unknown Speaker: And in none of those did the federal courts borrow the service requirement of any of the states?

Mr. Levy: That's correct, although the states had a service requirement, albeit it in a different section.

Unknown Speaker: And in some they borrowed the tolling rules, but not the service requirement.

Mr. Levy: In many cases, not only lower courts but in this Court's cases, state tolling rules have been borrowed, but only after first looking to see whether there was a federal rule to govern the question.

Indeed, in the case of Chardon v. Fumero Soto, the Court first looked to see whether there was a federal rule, and only after deciding--

Unknown Speaker: So your basic argument is you don't borrow unless you have to.

Mr. Levy: --You don't borrow unless you have to.

The difficulty with adopting the service requirement for hybrid DFR litigation is that it's wrenched out of the context of administrative practice for which it was designed and applied to federal litigation, in which it has very different effects.

Unknown Speaker: It would be unfair for all of the cases that borrow 10(b), wouldn't it?

Mr. Levy: That's correct, for all DFR cases and hybrid cases, and I suppose it is an open question what other kinds of labor cases are covered by DelCostello and Section 10(b).

At the NLRB, after all, the filing and the service of an administrative charge normally take place on the same day.

Service is effective on mailing, no matter when it is received by the proper person in the organization to take action on it.

In the district court, by contrast, a plaintiff has to follow various service rules after filing and obtaining summonses.

Various things can go wrong in the course of seeking service, and unfortunately they often do.

And yet, if satisfaction of the statute of limitations depends on completion of service within the limitations period, the effect is to push back by several weeks the time in which a plaintiff must file the complaint in order to be sure that his claim will be heard.

And yet, as this Court has recognized in DelCostello--

Unknown Speaker: Why does it take so long to effect a service?

Mr. Levy: --Because very often if you have an individual process server the individual process server may not be able to find the appropriate member, particularly of a labor organization, in order to effectuate service.

Now, the Court did ameliorate the problem of service by adopting the mailing rule in the 1983 amendments.

But the problem with the mailing there are three problems with effecting service by mail.

The first is that the plaintiff under the terms of the mailing rule, Rule 4(c)(2)(C), the plaintiff cannot be sure if service has been effected properly until at least 20 days have passed, because that is how long the defendant has to return an acknowledgment form.

Unknown Speaker: Well, is this a suit against a union?

Mr. Levy: This is a suit against both the union and the employer.

Unknown Speaker: Not much of a problem of finding anybody in these kinds of cases, is there?

Mr. Levy: Unfortunately, there often is.

Unknown Speaker: I mean, don't they have offices?

Mr. Levy: They have offices, but the office employee who sits at the front desk is usually not authorized or often not authorized to accept service.

Many unions take the position that only their officers can be served.

Unknown Speaker: They may take that position, but that may not survive.

Mr. Levy: Under Rule 4, when you're serving an unincorporated association you have to serve a managing or general agent--

Unknown Speaker: Well, how long do you think you yourself would take to find somebody who is authorized to accept service for this particular union?

Mr. Levy: --It depends on whether that person is willing to be found, Your Honor.

In this case, it is true they returned the acknowledgment form in the appropriate manner.

But there are others in which it has been difficult to effectuate service.

For example, in the Thompson case, the Eighth Circuit case on this subject, it took a month and a half.

They sent a marshal to the office, the right person wasn't in the office.

Unknown Speaker: Well, a lot of times if you really think you're going to have any problem with this you don't file your complaint until you know where you can find the guy that you're going to serve.

Mr. Levy: But the problem is--

Unknown Speaker: And before he can run, you've got him.

Mr. Levy: --But unfortunately, the problem is that you have a very short statute of limitations.

Unknown Speaker: That's right, that's true.

Mr. Levy: And pushing back the time to file the complaint means that you may have only five months to file the complaint or perhaps even less.

Unknown Speaker: Are these DFR cases typically brought against a local of the union as a labor defendant, rather than the national?

Mr. Levy: They can be both.

Frequently both the local and sometimes a regional body and sometimes the international are joined.

It depends on who is performing the representative function with respect to the particular grievance.

Unknown Speaker: Is there a problem of effecting service by mail on the national?

Mr. Levy: It depends on whether the national is willing to accept the service.

Unknown Speaker: They're fairly well established organizations, aren't they?

Aren't they used to getting service in the mail?

Don't most cities have process servers that for a bit of money will serve the right person and guarantee it?

You just have to pay a little extra money.

Isn't that true?

Mr. Levy: If you can find the right person at the right time.

But you cannot always find the right person at the right time.

Unknown Speaker: Aren't there people that do that?

They know how to do it.

Mr. Levy: There are people who do that, and then it costs extra money to do that.

But they do not necessarily find the person right away, and the problem is if you're the plaintiff and wanting to be sure that your claim is going to be heard because your complaint is going to be deemed timely, you have to make sure that you file it so that just in case you aren't able to get service the first time--

Unknown Speaker: Every city has one group who'll do it for the right amount of money, up to $500.

Mr. Levy: --If they can find the right person, and they can't always find the right person right away.

If service is not acknowledged, even using the mailing example, then the question arises, is service effective despite the lack of acknowledgment, because if you say that you have to go if the Court were to say or to proceed on the assumption that, yes, there is a process server available, that is assuming that these penurious plaintiffs, people who've been unemployed until the resolution--

Unknown Speaker: "Penurious" means miserly.

You mean poor, don't you?

Mr. Levy: --Poor, poor.

Unknown Speaker: Impecunious.

Mr. Levy: Impecunious.

If they have to rely on process servers, that means they can't rely on the mail service.

But if they do rely on the mail service, the question arises whether they can effectuate mail service.

The question arises whether service that has been sent by Rule 4(c)(2)(C), but not acknowledged, is effective.

And unfortunately, although the Second Circuit has adopted a rule which suggests that it is effective despite the lack of acknowledgment, other circuits have taken a disapproving view of the Second Circuit's view.

And that's the Morse v. Elmira Country Club case, which is cited in defendants' briefs.

Unknown Speaker: There are no problems at all in the administrative service?

Mr. Levy: Under the board's rules, once you pvu iu io uhe najm up uif pshbojzbtjon tibt's dhbrged, that's tif fne of it.

Service is effective on mailing.

Whether or not even if the union claims that it didn't receive it or the employer claims that it didn't receive it, service is effective on mailing once you've proved the mailing.

Now, one could ameliorate the problem by adopting all of the board's rules about what you have to do to have a timely unfair labor practice charge and what you have to do to have a timely complaint.

You could start by adopting the mailing regulation, which would ameliorate the problem, we agree.

But then one would be confronted with other board timeliness rules, such as the rule that if you include one discharged individual in an unfair labor practice charge other discharged individuals discharged around the same time and in the same course of events can be added later, because their claims relate back to the first unfair labor practice charge.

That of course is inconsistent with the practice under Rule 15(c).

One might adopt the rule that all you have to file is an administrative charge, not a complaint under Rule 8.

One might adopt the rule that Rule 11 doesn't apply, which obviously requires people to take longer to put together complaints.

All of these board rules, the relation back rule, the simple administrative charge, as well as the mailing regulation and the service rule, do reflect determinations about the balances between policies of enforcement and policies of repose.

All of them reflect determinations about how much ought to have to be done how soon in order to advance the balance of policies served by Section 10(b).

There is no sound reason for drawing a line between the service rule and the mailing rule, between the mailing rule and any of the board's other rules.

Although it would certainly ameliorate the burdens on DFR plaintiffs, it would scarcely be desirable to develop a separate set of procedures, timeliness rules, to govern the litigation of DFR cases, timeliness rules which indeed would have to be discerned from the decisions of the NLRB.

Our approach using Rule 3 instead of the service requirement of Section 10(b) has the advantage of being a clean line which avoids that slippery slope.

Now, Respondent's principal argument in favor of a service requirement is that the service requirement allows them to be certain after a six month period that their actions are no longer subject to challenge.

Now, that is not strictly true because of course at the NLRB service is effective on mailing, so it is some period of time after the unfair labor practice charge is mailed that they receive notice of the challenge.

But even more important, it is often not clear when the six month period begins to run.

Unknown Speaker: Well, the notice may never get there.

You're telling me it's effective even if the notice never arrives.

Mr. Levy: It is effective.

Now, in the course of the board's investigation one of the things they will do is contact the employer.

So it is not likely to be more than a few weeks before they receive the information that this action is pending.

But as I understand the board's rule, so long as you prove that it was put in the mail it was effective on mailing.

Now, it is true that unfair labor practice claims, just like any other claim, raise questions of accrual.

But by the very nature of the duty of fair representation, the time of breach tends to be unclear, because what is at issue is not simply a discharge, but rather a grievance procedure and the union's failure to act or acting improperly in the course of a grievance procedure, which may linger for months or even, as this case, years, as in this case years.

Even if one or both of the union and the employer think that the grievance procedure has been brought to an end by a compromise or a failure to go forward, that fact may not have been communicated to the employee, as here.

Or indeed, intra-union remedies may be being exhausted, and this Court decided in Clayton that very often intra-union remedies will prevent the employee from suing and thus presumably toll the application of the statute of limitations.

So the union's argument and the employer's argument that the service rule allows them to be certain after a finite six month period of time that their actions will be immune from challenge seems to us to be substantially overstated.

It is true under Rule 4(j), it is possible that it will run more than six months, maybe as much as ten months.

But that is far less than the kinds of statutes of limitations with which this Court was concerned in DelCostello and Mitchell, far less than three years, far less than six years.

So in conclusion, there is no good reason not to follow the normal federal rule in federal question cases that filing the complaint satisfies the statute of limitations in a federal question case.

And application of Section 10(b) service rule to federal court litigation would serve a different balance of interests than the balance of interests they were designed to serve in the administrative context.

Given that different context, given that different effect on the DFR plaintiff, who has only six months to find a lawyer and institute suit, the Court should not further shorten the time to institute suit by requiring service of process within the six month period.

And therefore, the judgment should be reversed.

Argument of Laurence E. Gold

Chief Justice Rehnquist: Thank you, Mr. Levy.

We'll hear now from you, Mr. Gold.

Mr. Gold: Thank you, Chief Justice, and may it please the Court:

As Mr. Levy has indicated, in the DelCostello case this Court held that the statute of limitations in this type of case is the statute of limitations stated in Section 10(b) of the National Labor Relations Act as amended.

That provision says that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the board and the service of a copy thereof upon the person against whom such charge is made.

In the words of Walker versus Armco, a diversity case arising in a different context, to be sure, of this Court in 446 U.S., this language seems to us to plainly be a statement of a substantive decision by the legislature that actual service on the defendants is an integral part of the several policies served by the statute.

There are various kinds of statutes of limitations, and this appears to us to be an example of one in which the tolling rule is one which not only rests on filing, but also on providing notice, that repose is served in that way.

Unknown Speaker: Mr. Gold, would it make any difference if the service requirement were in a separate statute?

Mr. Gold: Given the entirely federal nature of this case, my view, our view on that, is that the answer is no.

It seems to me that the question you raise runs some of the variations on the question of what the interplay is between Rule 3 and various kinds of statutes of limitation.

And, contrary to Mr. Levy, we don't believe that there is a normal rule on that issue.

There is an open question in this Court, which the Court has never treated with and which in Walker was specifically preserved, as to what the normal rule ought to be.

We know the following things, and I think only the following things, in approaching that question.

First of all, we know that Rule 3 governs the dates from which... governs the date from which various timing requirements of the federal rules begin.

That's what this Court held in Ragan and that is what the Court reaffirmed in Walker versus Armco.

We also know that Rule 3 is not intended to toll a state statute of limitations in a diversity case.

At that point, our certain knowledge ends because, as I've said, at least so far as any of us are aware through our researches and so far as the Court indicated in Walker, when you reach federal question cases this Court hasn't spoken.

Unknown Speaker: Mr. Gold, it is true, is it not, that there was a wealth of litigation under the treble damage provision of the antitrust laws, as well as 1983, where you had to borrow a state statute of limitations?

And in none of those cases did anybody ever argue... or at least I don't remember it... that the state service requirement applied.

Mr. Gold: Well, those cases, it seems to us--

Unknown Speaker: They of course don't have the same language that 10(b) has.

Mr. Gold: --Yes.

The point is, as far as we're concerned, that those are... those were cases where the borrowed statute of limitations says that a cause of action must be brought, begun, filed, commenced, and don't tell you what those words mean.

In that situation, there's no other source of law other than Rule 3.

Unknown Speaker: Well, except that some of those state statutes had been construed by state courts to require service within the limitation period, and that's just as though those words would have been written into the statute.

Mr. Gold: Well, in those terms I'm not sure what the right answer ought to be.

This is not the first area, if your recollection is correct and I feel that your knowledge of antitrust law is almost always greater than mine--

Unknown Speaker: Not where unions are concerned.

[Laughter]

Mr. Gold: --That may be, but only because I've had a more painful experience in here.

But that wouldn't be the first time where this Court in borrowing borrows the statutory material, but not all the determinations in state law that go with it.

Indeed, in Wilson versus Garcia New Mexico in the 1983 context had made a ruling on tolling and this Court said that it was... that ruling was on a basically federal question.

But certainly--

Unknown Speaker: The same principle applies, that whether it's in the statute or by judicial interpretation or whether it's in another statute, if you don't take it along it means you are not applying precisely what the borrowed statute of limitations would do.

And doesn't that amount to a judgment that, look, it doesn't have to be that precise?

We're borrowing anyway; if it were that important that it be that precise, Congress would have specified it.

So what we do is, you know, pick the six months or two years or whatever it is, and use our normal federal rules for deciding when the complaint's filed.

Mr. Gold: --If there were a normal federal rule and if it were plain that in these borrowing situations that normal federal rule applies I would agree with what you're saying.

But in the diversity context, which as I indicate is the one thing we know in Walker, and in general in discussing the borrowing process, the Court has said that it isn't... that the point of the matter is, rather than engaging in judicial creativity to draw on, because these matters are necessarily arbitrary to some extent, you're saying thus far and no further and how long the period of repose, the period of non-repose ought to be, that you're going to look not only to a sum of days, but also to the tolling rules generally.

So that is what we know in terms of what the Court has done.

And what I am saying is that where the borrowed statute of limitations doesn't give you any information from the legislature, applying Rule 3 simply doesn't create a conflict with anything.

Unknown Speaker: We do borrow that along with the statute of limitations, but there's nothing to replace it with.

I mean, you've got to get tolling rules from somewhere, too.

You don't have a Rule 3 that sets forth the tolling rule.

You do have a Rule 3 that sets forth, we think or it's argued, a rule for when an action is commenced.

Mr. Gold: It is a rule for when an action is commenced, but the very point of Ragan and Walker is that, while it tells you when the action is commenced, it doesn't tell you when the statute of limitations is tolled.

That was the precise point of the analysis in Ragan and the precise point of the analysis in Walker.

And the question here really is whether in a borrowing situation this kind of tolling, tolling where the legislature says we want these people to have actual notice, is different from other kinds of tolling rules.

I just find it hard, given the assigned rationale of Rule 3, which it tells you certain things about the date from which other time requirements in the flow of litigation mean, to say that it is a rule which ought to override a more specific legislative judgment in either an applicable or a borrowed statute of limitations.

On the other hand, the point I was trying to make when I was discussing the matter with Justice Stevens is that it does make sense where all the legislature has told you is that the plaintiff must bring, begin, file, or commence a lawsuit within a certain period of time, to say if he comes into federal court we'll say filing the complaint is bringing, beginning, filing, and commencing.

There is no conflict.

You're not running against the grain of any legislative judgment in such an instance.

And interestingly enough, at least as we understand their presentation, the plaintiffs concede that if you have a federal statute of limitation which is applicable to a certain cause of action in terms and requires with regard to tolling service in terms, that federal statute overrides Rule 3.

That's what we think we have here.

We have an implied federal cause of action coming out of the National Labor Relations Act and the Railroad Labor Act.

This Court has said that the statute of... the implied cause of action to sue the union for breaching its duty of fair representation.

Unknown Speaker: What about against the employer?

Mr. Gold: It's an express cause of action.

Unknown Speaker: Yes.

Mr. Gold: So they're both--

Unknown Speaker: Same statute of limitations?

Mr. Gold: --Correct.

And we're saying that the Court has said to that complex of an express and an implied cause of action that there is a federal statute of limitations which Congress has devised and which applies in this situation.

So as far as we're concerned, Congress is the lawgiver in both regards, and the Court says that these two pieces fit together, and that is what DelCostello says, and this borrowed federal statute of limitations is, we submit, in form the kind of statute of limitations which embodies the substantive judgment of actual notice.

And it seems to us that to say that if Congress had added to 301 in so many words a requirement of actual notice, then Rule 3 wouldn't apply, but since it is this process of drawing implications from the totality of what Congress has done that applies here, that Rule 3 does override it doesn't make any sense.

The point is that Rule 3 can help you where the legislature hasn't told you anything very much, but that its basic purpose is not to state the tolling rule or the form of notice that tolls a statute of limitation, but to set up a sequence of various time limits if you have a proper and timely cause of action.

And just in our judgment, given the basic theory of borrowing statute of limitations, which is that, instead of engaging, in this Court's words in Johnson versus Railway Express, in judicial creativity, but rather to look to what the legislature has done and to try to follow the lines that the legislature has indicated, that it makes sense to distinguish between a statute of limitations which is applicable in terms and the statute of limitations where it is a federal statute of limitations that this Court determines is the one that is intended to apply.

Now, there are a variety, it seems to us, of federal question cases, and I simply want to note that we have touched on several of them thus far, but there are other kinds as well, where the Court determines to borrow a state statute of limitations.

There may be situations... and indeed, the case that the Petitioners put heaviest reliance on, Bomar versus Keyes, which is a Learned Hand opinion in the Second Circuit, is an example of this.

There may be situations where there's a statute, a state statute of limitations which is borrowed, and there is also a state procedural rule passed to govern the state courts.

And the Second Circuit said you weren't going to borrow that state procedural rule.

And it seems to us that that's different from this situation, because a state legislature is acting to regulate its court system.

It isn't acting to regulate the federal system.

I note that simply to say that it seems to us that the state, barring of state statutes of limitation may raise different questions than this.

Unknown Speaker: Well, that's true, it enacts those filing rules to govern its courts.

But it also enacts the limitation period having in mind that the way that that period will be applied is--

Mr. Gold: It may or it may not, Justice Scalia.

At that point you do have a situation, and I'm plain to say that on that issue I'm agnostic.

I'm only pointing out that it's different from the situation we have here in a manner of degree.

And this Court hasn't spoken to it.

I'm simply saying that Judge Hand's resolution of the issue may be right, and he had a habit of being right.

But it is different from this situation.

Here we have in our view one lawgiver, Congress, which created, passed this statute, created an express cause of action, and this Court has determined intended an implied cause of action, and Congress, which passed a statute of limitations which applies.

And at least in that kind of borrowing, our position is that where the legislative judgment on when the period of repose begins has an actual service element to it, that comes in the package as one of the tolling rules that fits.

Mr. Levy talked about a number of hypotheticals about how service would and could be effectuated.

I only want to point out two things: A labor union that its members can't find is soon going to be decertified; and second, we note in our brief that the question of whether Rule 4, which of course was treated very differently in terms of this complex of issues in diversity cases than Rule 3 was in Hannah versus Plumber and Walker versus Armco, whether it is Rule 4 which tells you how to make service or whether it is the Labor Board's mailing is good enough rule is a question that is of relatively small moment and it's not presented here.

The Petitioner was late whichever way you cut it as long as service within the six months was required.

Unless there are any other questions.

Chief Justice Rehnquist: Thank you, Mr. Gold.

Mr. Gold: Thank you.

Rebuttal of Paul Alan Levy

Chief Justice Rehnquist: Mr. Levy, you have three minutes remaining.

Mr. Levy: First, we agree, as Mr. Gold said, that if Congress decided that Section 10(b) should apply to cases of this kind, we would lose.

Congress does of course have the power to override the federal rules.

But Congress has not said that Section 10(b) should apply to cases of this kind, or indeed to any kind of judicial litigation.

This is a court-created cause of action and the court, because there was no--

Unknown Speaker: Not against the employer.

Mr. Levy: --Not against the employer.

It is a court-created cause of action against the union.

It is a Congress-created cause of action against the employer.

But of course, Section 10(b) doesn't apply at all.

There is no unfair labor practice for violating a collective bargaining agreement.

Because there is no statute of limitations, the court had to look for analogies, and it decided that the limitations period in Section 10(b) was the most appropriate analogy.

But to say that because it is Congress, that it created Section 10(b), makes no difference as opposed to the situation in which it was a state legislature which created a borrowed cause of action, because in neither case has the legislative body made a judgment about whether the statute of limitations ought to apply to this kind of case.

Second, if you do, if the Court does borrow Section 10(b)'s service requirement, what it is doing, we submit, is pushing back the time to file complaints, back towards the three month period which this Court decided in DelCostello was not enough.

And thus, we submit the Court would be undermining the vital bulwark to protect union members against arbitrary action by their unions.

Finally, if the court does decide to borrow Section 10(b)'s service requirement, we would urge the Court to make it clear that it is borrowing all of Section 10(b), because even if the question is not directly presented in this case it is presented in other pending cases, including at least one of the cert petitions which is pending the disposition of this case presumably.

And I refer there to the Ellisaldi versus Machinists, TWA versus Ellisaldi case, in which the complaint was mailed on the last day of the statute of limitations.

If the Court has no further questions.

Chief Justice Rehnquist: Thank you, Mr. Levy.

The case is submitted.

Unknown Speaker: The honorable court is now adjourned until Monday next at ten o'clock.

Attribution:

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Featured:

NLRB v. Electrical Workers - Oral Argument

Fri, 09 Jan 2009 14:48:30 +0000

Case:

NLRB v. Electrical Workers

Media File:

85-1924_19870225-argument.mp3

Related Transcript:

1986_85_1924_argument.xml

Transcript:

Argument of Jerrold J. Ganzfried

Chief Justice Rehnquist: We will hear argument first this afternoon in 85-1924, National Labor Relations Board versus IBEW.

Mr. Ganzfried, you may proceed whenever you are ready.

Mr. Ganzfried: Thank you, Mr. Chief Justice, and may it please the Court:

This case presents a question of statutory construction under the National Labor Relations Act.

The Board concluded that the respondent union violated Section 8(b)(1)(B) which prohibits a union from restraining or coercing an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances.

The Ninth Circuit denied enforcement to that order even though it acknowledged that the union's action may constitute prohibited conduct.

In our view, that recognition by the court should have ended the case and the Board's order should have been enforced.

Instead, in reliance on a theory that was entirely of its own creation, a theory that even the respondent now disavows, the court of appeals rejected the Board's interpretation of the Act.

It then compounded that error by rejecting the Board's findings of fact that would have required enforcement even under that court's legal theory.

After briefly reviewing the facts, I will like to explain why the Board's interpretation of 8(b)(1)(B) is reasonable and should be upheld, and I would also like to explain why the various limitations on Section 8(b)(1)(B) advanced in the theories of the district court and by respondent should be rejected.

This case arose out of a dispute between the respondent union and numerous electrical contractors in the Sacramento, California area involving the composition of a multi-employer bargaining unit.

For some 40 years the respondent had a collective bargaining agreement with the Sacramento chapter of the National Electrical Contractors Association or NICA, as it is called, which is an organization that represented some 55 employers in the industry, in negotiating and administering collective bargaining agreements.

The last of those agreements expired on May 31st, 1981, and two weeks later the union struck all NICA members.

The strike continued for some three months until September 15, 1981, when the union sent a disclaimer of interest in representing the employees of the Association's members in the multi-employer bargaining unit previously established.

The union did not, however, disclaim interest in representing the employees of NICA members in a different bargaining unit or in single employer bargaining units.

Rather, it filed separate petitions seeking to represent in single employer units the employees of some 17 NICA members, and as respondent's official testified in this case, the union's strategy was that,

"Ultimately, down the road, it was our hope that everybody would be back under an agreement. "

NICA, however, signed a bargaining agreement with a different union, the National Association of Independent Unions, or NAIU, and the two employers involved in this case, the Royal Electric Company and Harold E. Nutter, Incorporated, adopted that new agreement.

Some months later respondent restrained and coerced those two employers in the selection of their 8(b)(1)(B) representatives.

Internal union charges were brought against union members employed as supervisors by Royal and Nutter.

Those charges were brought under provisions of the union constitution that subject a member to penalties for

"causing economic harm to other union members. "

and for

"working for an employer whose position is adverse or detrimental to the union. "

Two supervisors were found guilty of those charges and fined $6,000 and 28,200 respectively.

The National Labor Relations Board found that the union's conduct coerced the disfavored employers in the selection of their representatives for Section 8(b)(1)(B) purposes, and therefore that the imposition of those fines constituted an unfair labor practice.

In reaching that conclusion, the Board applied the test that this Court set forth both in Florida Power and in ABC versus Writers Guild; namely, whether the union's action may adversely affect the employer in the selection of his representatives.

Section 8(b)(1)(B) was designed to preserve an employer's unfettered right to select supervisory personnel for two specific functions: grievance adjustment and collective bargaining.

The section preserves that employer right by removing from the arsenal of labor unions a particular economic weapon.

That weapon is the union's ability to restrain or coerce an employer in the selection of its representatives for the two stated functions.

Just as the statutory language focuses on the restraint an the employer, the Board and this Court have focused on the potential impact of union conduct on employers.

Specifically, in ABC versus Writers Guild, the Court described how such union discipline as we have here can restrain an employer's exercise of rights preserved under that section.

Such discipline, the Court said, may adversely affect a supervisor's willingness to perform grievance adjustment or collective bargaining duties, that is, his willingness to serve in that capacity in the first place, or the discipline may affect the manner in which the supervisor performs those tasks.

Unknown Speaker: In ABC there was a strike situation, wasn't there?

Mr. Ganzfried: ABC... the fines in ABC arose in the midst of a strike, that's correct.

Unknown Speaker: And there was none here?

Mr. Ganzfried: There had been a strike.

The strike had ended by the time the fines were imposed here.

Unknown Speaker: Mr. Ganzfried, Section 8(b)(1)(A)--

Mr. Ganzfried: Yes.

Unknown Speaker: --Saves out a union's right to impose discipline on its members, and you read this subsection (B) as an exception to that, some way?

Mr. Ganzfried: Well, the proviso in subsection (A) is not part of subsection (B).

It does not qualify subsection (B).

I might add that even with that proviso in mind, the union's right to enforce its own rules ends when the enforcement of those rules impairs a statutory labor policy, and here the enforcement of a rule impairs the statutory labor policy set forth in 8(b)(1)(B), namely the preservation of the employer's right to select his representatives.

Unknown Speaker: Preservation of it by providing him with a larger pool of people from among whom to select?

Mr. Ganzfried: Specifically protecting him from restraint or coercion in making his selection.

Unknown Speaker: How is he being coerced?

He is not... it's not that he's made a selection and that's... and somehow he is directly being coerced to change that selection; it's just that the union is saying to its members generally, you won't be in the pool that the employer can select from.

Mr. Ganzfried: Well, this case is not to present a question of a pool.

In this case we have two employers who have selected two representatives, Mr. Choate and Mr. Schoux, and the union stepped in and said Mr. Schoux... in effect Mr. Schoux and Mr. Choate must go.

They effected that by imposing fines on Mr. Schoux and Mr. Choate, substantial fines that clearly would have the effect of compelling them to leave their employment.

Unknown Speaker: Is that crucial, that they already had the jobs as supervisors?

It would be a violation just as much for an agency simply to say, nobody who is a union member can apply for a job as a supervisor.

Wouldn't that be a violation too?

Mr. Ganzfried: It could well be.

The point I am making--

Unknown Speaker: Please don't tell me that's not this case.

I know it's not this case.

But wouldn't that be a violation?

Mr. Ganzfried: --If what the union did constituted restraint or coercion.

Unknown Speaker: To be sure.

I am asking you whether, under the Board's theory, it would constitute restraint or coercion of the employer, simply to tell your union members, we don't want you working for this type of an employer in any job, including as a supervisory job.

Mr. Ganzfried: In the absence of any... simply a statement, a precatory statement by the union--

Unknown Speaker: No, no, not precatory.

You'll be punished if you do it.

Mr. Ganzfried: --Then it would be a violation.

Unknown Speaker: Okay.

Mr. Ganzfried: In ABC the Court referred to two potential effects.

That is--

Unknown Speaker: You are coercing the employer by limiting the pool from which he can select.

Mr. Ganzfried: --That's right.

Unknown Speaker: That's a mild form of--

Mr. Ganzfried: This Court did say in ABC that either of the two effects that I described, that is, the willingness to serve or the manner in which the supervisor performs his functions, constitutes restraint and coercion under the Act.

In this case there is not dispute that the supervisor members, Mr. Choate and Mr. Schoux, were representatives of their employers for the purposes stated in Section 8(b)(1)(B), and the court of appeals agreed with the Board that the union's conduct could have the effect on the employers that the section was designed to prevent.

After all, $6,000 and $8,000 fines are mighty coercive.

And the parties in this case don't dispute that conclusion, although there is suggestion in the amicus brief by the AFL-CIO that union discipline can never violate the section.

That is a suggestion that would overturn two decades of jurisprudence under the Act, and it would require this Court to overrule its holding in ABC.

Ultimately, that's a suggestion that should go to Congress, and I would note that Congress has expressed no displeasure with the Board's long-settled interpretation of the statute that we are presenting here.

It is our submission that when it has been determined that the disciplined employees fit within the terms of 8(b)(1)(B) and the union conduct may deprive the employer of that supervisor's services, then the inquiry is at an end and the violation has been established.

Unknown Speaker: --How deep does this go, Mr. Ganzfried?

Could a union violate this section by disciplining simply a run of the mine member, an employee?

If the employer says, well, I was thinking about maybe picking him for a supervisor sometime--

Mr. Ganzfried: If the union disciplines him for working for... the union may be free to discipline a journeyman for working for a particular employer, a non-union employer.

It can't discipline someone because that person serves as a supervisor for such an employer.

Unknown Speaker: --So, working for an employer as a journeyman, the union may discipline; working for an employer as a supervisor, a union may not discipline?

Mr. Ganzfried: That's right.

This section reaches the... takes that economic weapon out of the union's hands in the context of supervisors performing the 8(b)(1)(B) function.

Unknown Speaker: But, Mr. Ganzfried, if there is no ongoing collective bargaining agreement or relationship between the employer and the union, how is the employer threatened in the integrity at the grievance adjustment bargaining process by this action?

Mr. Ganzfried: He is restrained in his selection of the person he will have performing that function, and that is what the statute protects.

Unknown Speaker: But he doesn't have any relationship with this union at all, then.

It's just--

Mr. Ganzfried: He may not have a collective bargaining agreement with the union.

Unknown Speaker: --What I am suggesting is, maybe there is some sense in requiring a representational nexus.

Mr. Ganzfried: One answer to that is, well, in fact there is an adversity relationship between the union and the employer.

That is, the union disciplined these people because they worked for employers whose positions were adverse and detrimental to the union.

The adversity is established by the basis for the union's discipline.

In fact, this dispute arose in a context that is very similar to the kinds of industrial contexts that Congress was considering when it passed this section; namely, a dispute as to what will constitute the... who will be a member of the multi-employer bargaining unit.

It was an ongoing struggle.

While the strike that had started--

Unknown Speaker: Well, it sounds like you are arguing, there is in fact a representational nexus here, rather than arguing that a representational nexus is not what we ought to hang the decision on.

Mr. Ganzfried: --Well, there is a representational nexus here and in fact the Board found that as a matter of fact.

It is not necessary to our view of a section, because, for the reasons the union points out in its brief, in order for a union to fulfill its purposes, one necessary goal is to represent as many as possible, if possible, all of the employees in an industry in a geographic area.

In this context, the unions and the employers will be in an adverse relationship.

Now, it's not necessary to define the nature of that adversity as being representational or something else.

A union could, without any representational nexus or without any present representational intent, decide that company "A" has a foreman that a lot of the employees don't like.

Company "A" is nonunion, and the union, without representing the employees, just pickets or makes threats aimed at having foreman "A" out.

Now, it may turn out that as a result of that, the employees out of gratitude may turn to the union.

The point is, the employer's right to select his representative has been restrained and that's the way the statute was written.

Unknown Speaker: But the representative would be doing the employer's work with another union?

Mr. Ganzfried: With another union?

Unknown Speaker: Yes.

Mr. Ganzfried: As in ABC, the grievance--

Unknown Speaker: Suppose there were two employers here.

One, after this reorganization, one of the employers in the unit didn't sign the agreement; as a matter of fact, he wasn't represented by the union at all.

And the other employer was the employer in this case, and the union fined supervisors in both companies.

The only thing is that the supervisors in the one company had no representational function whatsoever.

I suppose the union could make them quit, just like they could make non-supervisors quit.

Mr. Ganzfried: --If the supervisor in the non-union... and by that I mean no union employer performs the functions described in that section, grievance adjustment, and the union imposes that--

Unknown Speaker: So, it doesn't make any difference whether there is a union involved or not?

Mr. Ganzfried: --That's right, as long as the supervisor is performing the designated functions.

Unknown Speaker: Well, there are a lot of supervisors who don't.

Mr. Ganzfried: Then they are not covered.

Unknown Speaker: And so they--

Mr. Ganzfried: If they are fined for performing other functions.

Unknown Speaker: --But you don't think it makes any difference that the representational activities involved here are between the... and respecting another union, a different union?

Mr. Ganzfried: No.

It may make this case, perhaps, an easier case but it's not essential to our theory of the case.

The employer's right has been restrained, and that is what the statute speaks to.

The statute doesn't have in it a limitation that this can occur only with respect to employers who have a collective bargaining relationship--

Unknown Speaker: You want a strict reading of the statute; that is what you are urging on us?

Mr. Ganzfried: --The conduct here comes within the language of the statute and that's the way the Board has interpreted it, and it's a reasonable interpretation.

Unknown Speaker: Well, if you want to interpret the statute strictly, I don't know that the employer is being coerced here.

Doesn't it strike you as strange that we have... that Congress would create a system in which a union can say to its members, you can't work for this employer but you can, of course, become a supervisor and bargain for that employer.

That's a very strange result.

Mr. Ganzfried: Well, what Congress is doing--

Unknown Speaker: And that is the situation we have, right?

Mr. Ganzfried: --It's taking union interference... it's protecting the employer from union interference with the supervisors who are coming... who are in interface with journeyman, rank and file, the subordinate employees.

Unknown Speaker: May I ask... I'm not sure I remember your answer to the earlier question.

As I understand it, the discipline here was not because he's a supervisor but rather because he was an employee of a company with which the union had no relationship?

Mr. Ganzfried: The discipline was because he was working for an employer who was adverse and detrimental... whose position was adverse and detrimental.

Unknown Speaker: It wasn't critical that he was a supervisor, from the union's rationale for imposing the discipline?

Mr. Ganzfried: Well, we don't inquire into that particular rationale.

Unknown Speaker: And then it's the question that I think the Chief Justice asked you this and I'm not sure I got the answer, supposing he had not been a supervisor but merely among a group of employees who was eligible for promotion at some future date, and they in effect said, you can't work for that employer; well fine you if you do.

Would that violate the statute?

Mr. Ganzfried: Our position on that is that it wouldn't.

Unknown Speaker: It would not?

Now, what's the difference?

I just want to be sure I understand, why--

Mr. Ganzfried: The difference is that the statute protects the employer from having the union come in and say, we don't like foreman Smith.

Unknown Speaker: --No, but the section says, "in the selection of".

It doesn't use the word "selection" of--

Mr. Ganzfried: Yes.

Unknown Speaker: --And wouldn't that affect the--

Mr. Ganzfried: In the selection of--

Unknown Speaker: --It would affect the pool from which the employer could make its selection.

I'm not quite clear why that's different, because both cases reduce the pool from which the employer can make the selection.

Mr. Ganzfried: --In both cases it reduced the pool.

Unknown Speaker: Well, in the one case it insists that somebody who has been selected be removed.

Mr. Ganzfried: That's right.

Now, if we're going to--

Unknown Speaker: So, it isn't a matter of selection, but--

Mr. Ganzfried: --Well, it is the selection.

He's been selected and he's out.

That is clear and direct restraint.

I think we are now talking about a hypothetical in which the union has, by threats or coercion of some sort, indicated that it doesn't want its members working for Nutter or Royal at all.

To the extent that that--

Unknown Speaker: --It's not threats or coercion.

It's a union rule.

That's a very common union rule, I understand.

Mr. Ganzfried: --It's a union rule.

Unknown Speaker: And it's a very common one, isn't it?

Mr. Ganzfried: And it's enforceable with respect to non-8(b)(1)(B) supervisors.

But Congress has taken that particular weapon of imposing a restraint with respect to those supervisors, out of the union's hands.

Unknown Speaker: Once they are in, certainly.

And what if they have sort of been... but before they're in it's okay so long as they haven't been made a supervisor with bargaining responsibility yet, the union rule could be applied and they could be fined, right?

Mr. Ganzfried: If they are fined simply for working for a non-union employer and the work that they do is journeyman work--

Unknown Speaker: And I've got--

Mr. Ganzfried: --And it's not an 8(b)(1)(B) situation.

Unknown Speaker: --And I presume we have middle situations somewhere, where they don't have the job yet but they have been offered the job by the employer and then the union chooses to--

Mr. Ganzfried: And the union comes along and says, don't take the job?

Unknown Speaker: --No, the union says, you are... just by working for this employer, which is what was the case here.

The union didn't discipline these people for taking the bargaining jobs.

They disciplined then for violating the union rule against working as an employee, right?

Mr. Ganzfried: For working for someone whose position is adverse and detrimental to the union, and for causing economic harm to union members.

That was the stated basis for the union discipline.

Unknown Speaker: You mean, they would not have been dismissed had they not had supervisory bargaining responsibilities?

They wouldn't have been fined by the union?

Mr. Ganzfried: Perhaps the union would have fined them, perhaps not.

Unknown Speaker: I thought the union rule was a general rule that you don't work for a non-union employer.

Mr. Ganzfried: The union rule in terms is even more general than that.

You don't work for anyone who is adverse and detrimental to the union.

Unknown Speaker: Okay.

Were there any other union members who are working for this employer who were not supervisors?

Mr. Ganzfried: In the earlier stages of this case, there was another employee, Mr. Miller, and he is discussed in the Administrative Law Judge's decision.

It was determined that he was a supervisor, but at the job site for which he was being disciplined, he was not working as a supervisor.

He was working as a journeyman and it was found that that did not violate 8(b)(1)(B).

Unknown Speaker: Were there any members that the union didn't discipline that were working for that employer?

Mr. Ganzfried: I don't know that the record indicates.

Unknown Speaker: Okay.

They just didn't select out supervisors to discipline?

Mr. Ganzfried: But they selected particular employers as the disfavored employers.

Unknown Speaker: And the Board's position is that they can do that with respect to normal employees but they cannot do that with respect to supervisors?

Mr. Ganzfried: They can have a rule that says you can only work for employers that have a contract with this union.

If they want--

Unknown Speaker: Unless that rule happens to apply to somebody who is doing bargaining--

Mr. Ganzfried: --When they seek to enforce that rule against someone who is in an 8(b)(1)(B) capacity, it's a violation of 8(b)(1)(B).

Unknown Speaker: --So he, in effect, he immunizes himself from that rule by accepting a supervisory job with bargaining responsibilities?

Mr. Ganzfried: Well, he... the employer is entitled to the protection.

The other way, looking at it from the other side--

Unknown Speaker: Well, has the Board ever explained or said why shouldn't... why the... if the employee doesn't like it he can get out of the union?

Mr. Ganzfried: --Has it explained why that--

Unknown Speaker: Why shouldn't the employee just get out of the union?

Mr. Ganzfried: --The employee could.

It doesn't undo the violation.

Unknown Speaker: I know, but when he takes the job, he quits the unions.

Mr. Ganzfried: If when he takes the job he quits the union?

Unknown Speaker: Yes.

Mr. Ganzfried: The union has no ability to discipline him any more.

Unknown Speaker: Well, right.

Why should that be the--

Mr. Ganzfried: Now, if it tries to restrain or coerce him in some other way--

Unknown Speaker: --Why shouldn't that be a resolution in this case?

Mr. Ganzfried: --To allow him to quit, for the union to say, because he can quit we can't coerce him?

Unknown Speaker: Well, yes.

Say that the union can coerce him as long as he insists on being a supervisor and a member of the union at the same time.

Mr. Ganzfried: Well, it's an argument that the Court expressly rejected in the ABC versus Writers Guild case.

Unknown Speaker: Well, isn't the Board's reasoning, at least in part, that in something like the construction industry a fellow may be a supervisor on one job and a journeyman or ordinary laborer on the next, and so he is really giving up livelihood if he leaves the union?

Mr. Ganzfried: He may well.

There may well be additional benefits that continue... like Mr. Miller, exactly.

Unknown Speaker: Well, it isn't just supervisor.

It isn't going from supervisor to employee.

It has to be a supervisor who has bargaining responsibilities, grievance responsibilities, right?

Mr. Ganzfried: That's right.

Unknown Speaker: That's generally a distinctive character.

You don't go in and out of that from job to job.

Mr. Ganzfried: Well, in some industries you do, and as the record shows with respect to Mr. Miller in this case he did.

On one job site he was not a supervisor and on another one he was.

Unknown Speaker: May I ask you... supervisor with bargaining functions--

Mr. Ganzfried: Supervisor with bargaining functions, and--

Unknown Speaker: --With these functions?

Mr. Ganzfried: --Yes, and he was found to perform these functions on one job site.

It was not the job site for which he was subject to the discipline on the job site, and when he was disciplined he was found to be working as a Journeyman.

Unknown Speaker: May I ask you the converse of Justice White's question, I take it from your position that the union could not have expelled him from the union either, because that would have been a form of discipline and he might have lost some pension benefits and the like?

Mr. Ganzfried: There have been cases in which the Board has found that expelling a member for--

Unknown Speaker: As discipline?

Just say, they use that as--

Mr. Ganzfried: --They expel him--

Unknown Speaker: --That would equally be an unfair labor practice?

Am I right, that would equally be an unfair labor practice?

Mr. Ganzfried: --That's right.

The Board has found that.

Our brief explains why the various limitations that the Court wanted to import into the statute, namely the representational intent, our brief indicates why that should be rejected as it does the limitation that the union in this case wants to bring into the statute, namely that it should be limited only to a union trying to influence the way a supervisor performs his functions but it shouldn't cover a union trying to prevent a person from taking that position in the first place or of forcing him out of a position that he has already taken.

I don't want to repeat what we had in the brief.

What I do want to say, though, is that when all is said and come in the case, the fact remains that the Board has not done anything new here, that it hasn't been doing in interpreting this section, for 20 years.

This case is in all material respects identical to the A. S. Horner case decided by the Board in 1968, enforced by the Tenth Circuit in 1972, and noted by this Court in ABC versus Writers Guild as failing close to the original rationale of Section 8(b)(1)(B) which was to permit the employer to keep the bargaining representative of his own choosing.

Argument of Laurence J. Cohen

Chief Justice Rehnquist: Thank you, Mr. Ganzfried.

We will hear now from you, Mr. Cohen.

Mr. Cohen: Thank you, Mr. Chief Justice, and may it please the Court:

In view at the questions thus far, I would like to begin my argument by emphasizing the nature of the union rule in this case, because it is at the heart of the case.

This rule of the IBW, which goes back to its founding in 1891, prohibits members from working for employers who are adverse to its interest, in this case by paying wages and working conditions less than those negotiated by the union.

The force of the rule, which was common in 1947 as we note in the brief and is common today is directed to and falls upon the union members, whatever their job classification may be.

It in essence requires their loyalty by not making themselves available to those employers who would undercut the conditions which the union has achieved, and in this case, I might add, it's clear that the rule long predated the employment, or probably even the existence of Messrs. Choate and Schoux.

I would like to respond at this point, Justice Scalia, to your question about the pool.

I disagree completely with Mr. Ganzfried in that, if this situation had come up as follows: Mr. Choate goes to his union office and says,

"There's a job open for me at XYZ Electric, they are non-union but I need the acney, is there a problem if I go to work for them? "

And the union agent says,

"Absolutely. "

"Look at these provisions in the constitution. "

"If you take that job it will be a violation. "

"I personally will bring charges against you. "

"The last supervisor who worked for a non-union employer was fined $5,000. "

And Mr. Choate thinks about it and decides that he's not going to work.

I think it is simply inconceivable that that has restrained any employer in his rights under Section 8(b)(1)(B).

I think, as you were pointing out, it may restrain or coerce Mr. Choate but that is not what Section 8(b)(1)(B) is all about.

The rule here is simply the--

Unknown Speaker: Otherwise, though--

Mr. Cohen: --I beg your pardon.

Unknown Speaker: --We have said otherwise.

I mean, we have fallen into that hole already, if you consider it a hole.

Mr. Cohen: I don't, but I understand.

This case is the other side, of course, of the hypothetical I have just mentioned, and we think the rule should be no different if, having deliberately breached the rule, he is then disciplined for that reach of the rule.

This Court, in fact in several cases which we have cited has noted that these rules are not only legitimate but serve a vital interest to the union, namely the elimination of wage competition.

I would point out that in ABC where the Court did uphold the Board's decision, it specifically referred to the Board's decision in that case as reaching, and I quote, 8(b)(1)(B) as established in Florida Power.

That's at page 430.

Here, we think it is clear that the Board has gone beyond those boundaries in reaching out to this rule which does no more than limit the pool.

As Justice O'Connor pointed out, there is no collective bargaining relationship between Nutter and Royal and the union.

There are no dealings between the parties, and the ongoing collective bargaining relationship was precisely the situation which Senators Taft and Ellender spoke to in the debates... we have set those forth in some detail in the--

Unknown Speaker: Mr. Cohen, what do you do with the language in note 37 in ABC case, which deals with the discipline of supervisors not involved in bargaining or grievance adjustment with the union?

Mr. Cohen: --Well, the particular phrase which the Board seizes on in footnote 37 is the employer's choice of a grievance representative with respect to employees represented by other unions.

At first glance it may seem that that's the situation we have here.

We submit, however, that that statement was made in the context of an existing collective bargaining relationship because the Writers Guild did represent what has become known as the "Hyphenates" in that case.

Therefore, there was a potential for an interference with an existing collective bargaining relationship.

Here, there is no such relationship.

There is no potential interference with it.

And that is the difference we see between this case and ABC.

Unknown Speaker: Well, I guess the language could be read more broadly.

Mr. Cohen: It could be, but the Court seemed to be directing it toward the situation it had before it, where there were several unions and some of the "Hyphenates" in question were not represented by the Writers Guild.

Certainly, the Court did not address the situation we have here where the union imposing the discipline has no contact whatsoever with the employers.

Unknown Speaker: Well, does it make a difference that the union is trying to have a collective bargaining agreement by forcing this employer into the multi-employer--

Mr. Cohen: I don't think it would, as we understand the decisions of this Court.

But the short answer is, that situation just did not occur here.

As far as the Administrative Law Judge went, was to say that the discipline imposed in November and December of 1982 was intended to force the breakup of a multi-employer unit, the old unit, back in September of 1981.

But apart from illogic of that, we have another ally.

We have another Board decision arising out of these precise facts and that is the Arden Electric case which is cited in our brief and which issued a year after this decision of the Board.

In that case, the Board found that NICA, and I quote, "agreed to the dissolution" of the multi-employer unit, and even more pointedly noted that the unit,

"was dissolved by the parties' consent to the disclaimer. "

in 1981.

As the Ninth Circuit pointed out, it simply seems inconceivable that fines against two individuals in November and December of 1982 could have been for the purpose of forcing the breakup of a unit in September 1981 which the parties had dissolved consensually.

One of the anomalies of this Board decision is that if it stands, a union could discipline rank and file members but not supervisor members for the same breach of the same union rule.

Another court... I'm sorry.

Unknown Speaker: --This decision, if it stands, that is an anomaly of ABC if it stands, isn't it?

Mr. Cohen: Except that it is anomaly of ABC, as it stands in the context of some sort of bargaining relationship.

This would carry that anomaly one step further.

Mr. Chief Justice, I would like to respond to a question you raised.

You asked if the discipline, whether it's a fine or even expulsion, would result in a loss of livelihood.

Under the Act, it is clear that it would not and lawfully could not.

Even if someone is expelled from the union, is no longer a member of the union, he must be referred to jobs... I'm referring to the construction industry now with its hiring halls... without discrimination.

That is the lesson of this Court's decision almost 30 years ago in Teamsters Local 357.

So, even expulsion would not result in a loss of working opportunities.

Unknown Speaker: Because a hiring hall in the construction industry must refer a non-union member on equally as favorable a basis as a union member?

Mr. Cohen: Precisely, and when they do not, the Board is very quick to discipline them for that.

Unknown Speaker: What's the advantage of belonging to a union, then?

Mr. Cohen: We think primarily in the obtaining of higher benefits and better working conditions.

Unknown Speaker: Well, but if the free riders or the non-union get the same thing--

Mr. Cohen: I agree with you, that that is a very strong argument against free riders.

But we were unable to convince the Congress in 1965 to repeal 14-B.

Until we do, we are left with that injustice.

If I may, I would like to address briefly the legislative history.

Unknown Speaker: --You can charge them for your services.

Mr. Cohen: They can be charged, although not to an extent of dues for use of a hiring hall, that is true.

We have set forth in some detail in our brief the legislative history of 8(b)(1)(B), and the one thing that it shows clearly is that Congress, and particularly the principal sponsors, envisioned it as a narrow provision which was aimed at two specific evils; forcing an employer to get rid of a particular supervisor who was deemed objectionable to the union because of the way in which he had performed his managerial services, or forcing employers into or out of multi-employer units.

As I have mentioned, this rule does neither.

It simply seeks to prevent the erosion of the union's negotiated standards by requiring that its members not make themselves available to work for those employers who would undercut those standards.

All of the examples used in the legislative history clearly make sense only in the context of a collective bargaining relationship.

As Mr. Taft said, we do not like Mr. "X" and you must get rid of him.

Senator Ellender said, so and so is too strict with the union; get rid of him.

It's virtually impossible that they believed that this section dealt with the situation we have here where there is no bargaining relationship whatsoever.

In a different setting this Court seemed to accept the limited scope of 8(b)(1)(B) and that was in the 1981 case of Labor Board versus Amax Coal which dealt with the interplay between Section 8(b)(1)(B) and the duties of trustees under Section 302 Trusts.

The Court's opinion there, which reflected the views of eight Justices, described Congress's intent under 8(b)(1)(B) as preventing unions from forcing employers to join multi-employer units or to dictate the identity of those who would represent employers,

"et cetera, and we did not read Justice Stevens' dissent to take issue with that aspect of the majority opinion. "

The Board's decision here clearly goes beyond Oakland Mailers on which ABC rests, and we think past the breaking point.

It is important to recall that in Oakland Mailers the Board focused on the right of an employer to have "control over its representatives" and it noted with particularity, and I quote again,

"The underlying question was the interpretation of the collective bargaining agreement between the parties. "

There can't be any such question, and no issue of divided loyalties here because there is no collective bargaining relationship.

Returning briefly to anomalies, another that we see here is that the Board's decision would grant supervisors a preferred status in unions because only they would be entitled to the benefits of membership without being held accountable for breaching the duties of union rules.

But that's exactly... I'm sorry.

Unknown Speaker: All supervisors?

Mr. Cohen: All supervisors who are members of the union.

They would be free from the strictures of the union rules.

Unknown Speaker: Maybe I don't know the business well enough, but I thought it's just supervisors who have bargaining or grievance responsibilities.

Is that almost always all supervisors?

Mr. Cohen: For the purpose of this argument, I will accept that because to explain it more fully would probably take an hour.

The Board doesn't really new to that line.

The Board has developed something which it calls a reservoir doctrine in which, basically it says, totally without warrant, I think, that any supervisor is an 8(b)(1)(B) supervisor because he is in that group from which grievance adjustors and bargaining representatives are naturally to be drawn.

So, while I agree with you, there should be such a distinction, I do not read the Board cases as having a real distinction.

Unknown Speaker: Well, wouldn't there have been some distinction between supervisors and run-of-the-mine people under the Taft-Ellender colloquy?

I mean, there were a few people, certainly, that the union could not discipline.

Or do you think that Taft and Ellender thought that union discipline was not the method by which the employer would be coerced?

Mr. Cohen: Frankly, I think that is precisely the case, although when I say that I have to recognize that I have ABC standing in front of us.

Unknown Speaker: And you also have a statute which, the Board has always had power to, you know, interpret in a fairly substantive way.

Mr. Cohen: However, with this particular provision for 20 years it interpreted it in a narrow manner which was faithful to congressional intent and legislative history, until the Oakland Mailers case in '68.

That is when it started its broadening of the scope of 8(b)(1)(B).

It finally culminated before this Court in ABC in which the Court, and I'll use the phrase, said that the Board... there were intimations both in Florida Power and in ABC that the Board had stretched it pretty far.

In Florida Power the stretching was not permitted because it had to do with supervisors performing rank-and-file work behind a picket line.

In ABC it was countenanced, but with the caveat, as I have mentioned, that the Court said, you have reached the outer boundaries and we think, given the lack of any relationship between the union and these two particular employers, that they have certainly passed that boundary in this case.

Unknown Speaker: Labor Board versus Amax?

Mr. Cohen: Yes.

Unknown Speaker: Is that in your brief?

Mr. Cohen: No.

It is not, Your honor, and it is one of those things that, when you prepare for your oral argument you see something you wish you had put in the brief.

Unknown Speaker: Why don't you tell me--

Mr. Cohen: Let me give you the citation for it.

Unknown Speaker: --All right.

Mr. Cohen: It's 453 U.S. 322, and the quote I read is at page 335.

Unknown Speaker: Thank you.

Mr. Cohen: I'd like to point out one of the rather strange things about the Board decision here, is that it appears to us to fly in the face of a much earlier Board decision which we have cited in our brief, as has the Board: National Association of Letter Carriers.

That was decided after ABC, and it cited ABC, and the Board there held that a union rule that denied membership status to persons who accepted jobs as temporary supervisors was not unlawful which is, I think, essentially what we have here.

The Board's reasoning is quite similar to our argument in our brief.

This is a quote.

This is from footnote 29 at the Board's decision.

"The fact that the Postal Service may have fewer letter carriers who are willing to serve as temporary supervisors as a result of the amendment to the union's constitution in no way affects the Postal Service's selection of which. "

--that's the Board's emphasis...

"of which letter carriers will serve as-- "

Unknown Speaker: The government here was saying that the union could discipline any of its members who are not supervisors if they insisted on working for this employer?

Mr. Cohen: --The Board does concede that.

But what the Board--

Unknown Speaker: That's this case--

Mr. Cohen: --I'm sorry.

Unknown Speaker: --That's the case you are talking about, almost.

Mr. Cohen: No, the case we are talking about is where the union stripped membership rights from those people--

Unknown Speaker: They stripped the membership rights?

Mr. Cohen: --They denied... there were two issues in the case.

First, denial of membership.

Unknown Speaker: You mean, entry?

Mr. Cohen: No... all right.

Let me back up.

Unknown Speaker: Were they already members?

Mr. Cohen: The union dealt with the Postal Service.

It has as its members the employee of the Postal Service.

It imposed a new rule in its constitution that said, you members, you employees of the Postal Service may not become temporary supervisors.

If you do, you lose your membership and you lose your benefits under that membership.

Unknown Speaker: These people are already members?

Mr. Cohen: Already members, as with us, banned from taking jobs as supervisors, as our rule does with respect to those employers who are adverse to our interests by having lower wage standards.

We see no principal distinction between the two rules, that of Letter Carriers and that here, or their effects.

And for these reasons, we ask that the Court affirm the Ninth Circuit's denial of enforcement to the Board's order.

Chief Justice Rehnquist: Thank you, Mr. Cohen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Pattern Makers v. NLRB - Oral Argument

Fri, 31 Aug 2012 18:29:29 +0000

Case:

Pattern Makers v. NLRB

Media File:

83-1894_19850227-argument

Related Transcript:

83-1894_19850227-argument

Transcript:

ORAL ARGUMENT OF LAURENCE GOLD, ESQ. ON BEHALF OF THE PETITIONERS

Chief Justice Warren E. Burger: We will hear arguments first this morning in Pattern Makers' League v. the National Labor Relations Board.

Mr. Gold, you may proceed whenever you're ready.

Laurence Gold: Chief Justice, and may it please the Court, the question in this case is whether the National Labor Relations Board is correct in its ruling that all Union rules placing restrictions on the time and circumstances under which a member may resign from the Union are invalidated by Section 8(b)(1)(A) of the National Labor Relations Act, as amended, is correct.

The facts which raise that question are these: The Pattern Makers' Union adopted a provision in its constitution and bylaws which we set out at page 3 of our brief, the blue brief, which states:

"No resignation or withdrawal from an Assocication or from the League shall be accepted during a strike or lockout or at a time when a strike or lockout appears imminent. "

That provision was considered at the Union's convention in 1976 and then was sent to a referendum of the Union's members, and finally approved and became effective in 1976.

Thereafter, a strike did ensue, involving the Rockford and Beloit local Unions of the Pattern Makers' Union.

some eleven members of those local Unions put in resignations during the strike and went back to work thereafter.

The Union, when the strike was finally settled, sought to impose Union discipline on these individuals.

Charges were served, a trial was held, and the result was that the case went to the National Labor Relations Board on the allegation that the Union's action in seeking to discipline these individuals for violating the Union's underlying rule that engaging in strike-breaking activity is unlawful as a matter of Union law, violated Section 8(b)(1)(A).

Unidentified Justice: What panel did the Union impose?

Laurence Gold: The Union imposed on the individuals for engaging in the strike-breaking activity.

Unidentified Justice: The fines amounted to all of their salaries earned when they went back to--

Laurence Gold: My memory, Justice O'Connor, is that the fines were in the amount earned while engaging in strike-breaking activity.

And, of course, the question of the state of those fines is a matter for state law to determine under this Court's decisions in the Boeing & Machinist case.

The validity of the fines, whether the fine's reasonable in amount, and so on are a matter of the state law of membership associations and the state law of contracts; and the extent to which the fines are enforceable, this Court has held, is to be determined in that forum.

So all we have is in inchoate action by the Union, subject to only one means of enforcement; namely, a state court lawsuit to collect the amounts in question with the law on what is collectible, a matter of state law.

Unidentified Justice: --Do you know whether the fines, in fact, have been paid?

Laurence Gold: My understanding is they have not.

Unidentified Justice: Well, could the Union expel these members for failure to pay the fines so that they wouldn't have to resort to state court collection proceedings under state law?

Laurence Gold: Yes.

There are, as we understand the law developed by this Court from Allis Chalmers through Machininsts & Boeing, two lawful methods for enforcing a rule against strike-breaking against full Union members.

Obviously, unless the person chooses to join the Union, to become a full Union member and be bound by the constitution, the Union can't take any disciplinary action.

But if somebody, as in this case, and it's conceded, if someone joins a Union, becomes a full member, agrees to abide by the constitution and bylaws, then the Union has two choices: one, to take action which leads to expulsion; two, to take action which leads to a fine which can be attempted to be enforced through court action.

Those are the only two options open to the Union.

Unidentified Justice: Now, has the Union permanently given up the opportunity to expel here by imposing a fine, or could it, if the fine proved uncollectible under its own constitution, say well, you failed to pay; we're going to expel you for that.

Laurence Gold: I presume... I've never seen a case of that kind.

I presume that a Union which first seeks a fine, to collect a fine, and is told by the courts that the fine is too high an amount or procedurally imposed in an imperfect way, would still have the option of expulsion.

The only argument I can see the other way is that there is some choice of remedies or waiver by the Union.

I don't think that would be the rule.

Usually, Unions seek to go one way or the other initially.

In many Unions, the complaint, internal complaint filed against the members, says what the penalty being sought will be.

And some Union constitutions provide that if the only penalty that can be imposed is that which the member has been given fair notice of, so that he can make his determination whether to defend or not.

Some people faced with expulsion wouldn't choose to defend, and it would be unfair to come around later and try to collect a fine from them.

So different Union constitutions treat that issue in different ways.

Unidentified Justice: I take it you will address the question of judicial deference to the Laurence view of the matter.

Laurence Gold: Oh, absolutely, Chief Justice.

The argument we make here is that the language and legislative history of the Taft-Hartley Act shows that Congress gave the most mature and complete consideration to the entire question of the extent to which the Labor Board should be empowered to regulate the Union/Member relationship, and that in particular, the House of Representatives proposed that it be an unfair labor practice for a Union to limit resignation in any way, shape, or form; where the Senate took a quite different view.

And that conference report demonstrates in this instance, as in many others, that the House receded to the Senate.

In other words, our position here is that Congress made a considered decision to deny the Labor Board the authority to dictate to Unions what their rules should be on who may join the Union, the conditions under which that person may join, position, the conditions under which he may be expelled, and the conditions under which he may otherwise leave the Union.

Unidentified Justice: Mr. Gold, may I ask, is there anything in the record... how much knowledge, if any, of this League Law 13 any of the eleven employees involved had at the time they joined?

Laurence Gold: The Board found or stated,

"There is no contention that the members who tended their resignations were unaware of the restrictions on resignation imposed by the constitution. "

Unidentified Justice: But there is nothing in the record that they were affirmatively informed of this provision when they joined?

Laurence Gold: All that the record shows, Justice Brennan, is that in adopting this provision, the Union publicized the matter to the full membership, and the membership voted on whether or not this restriction should be inserted into the Union constitution.

Unidentified Justice: Were these eleven members of the Union at the time of the adoption of this provision?

Laurence Gold: Yes.

That is my understanding.

They were members at that time.

And there was a hiatus from August 1976 until May 1977 between the time the provision was adopted and when the strike began.

So by the clear terms or the negative implication of this restriction, each one of these members was free each one of those days to say I don't choose to be a member of this association any longer.

This is a narrow and pointed restriction on the ability to resign, one which is attendant to a particular moment of the utmost importance to the organization, the strike period with its attendant pressures, and the period during which the employer is free to employ such coercive devices, perfectly lawful under the labor laws, as hiring permanent replacements, stating an intention to do so, and so on, all of the lawful uses of economic force which tend to pull the group apart.

Unidentified Justice: Do you read the Board's holding as an employee Union member is simply not at liberty to waive the right under 8(b)(1)(A)?

Laurence Gold: I read the Board's holding to be firm and absolute.

Unidentified Justice: Under no circumstances may an employee waive it?

Laurence Gold: No such rule as the Board--

Unidentified Justice: No, that wasn't my question.

A holding that the Union member, if presented with this clause before he joins, said look what happens to you if you were to strike, and he says that's perfectly all right with me, that's all right, I will go along with that and I join.

If that were a waiver, the Board says it's not to be--

Laurence Gold: --Yes.

The Board, in terms of its decision and also in its brief, more particularly addresses the question of waiver.

Obviously, Mr. Fried is better able to say what's in the Board's mind than I am.

But the Board's decision is stated in absolute terms, and certainly against the background of this case where the provision is adopted on notice by a referendum vote, not even by elected representatives, it is hard to believe when you read the Board's language, which is that any restriction placed by a Union on its members' right... any restrictions placed by a Union on its members' right to resign are unlawful, admits of any exception.

Unidentified Justice: --Of course, your position is that he had no right to waive.

Laurence Gold: That's right.

Unidentified Justice: That's your primary--

Laurence Gold: Yes.

Our primary position is that Congress made a basic judgment.

Unidentified Justice: --Limited these rights to the extent necessary to let the Union run its own affairs.

Laurence Gold: That's correct.

Unidentified Justice: And I take it that you rest on the legislative history.

Laurence Gold: Yes.

We rest on the--

Unidentified Justice: If there was nothing but the language, you probably would be in more trouble.

Laurence Gold: --Yes.

The language... it seems to us to proceed in the way the Court has instructed from the language to the explanation.

The language is hardly helpful to the Government, but--

Unidentified Justice: Well, unless you are inclined to say that if the Board gave it a permissible reading, you'd think it.

Laurence Gold: --That is what I was about to say, Justice White.

I don't think it is very helpful, but I could not say--

Unidentified Justice: That the language wins your case.

Laurence Gold: --Forces a decision in our favor.

I do think the language cuts in our favor in two different respects: one, the section 7 right is a right to refrain from concerted activities, and it seems to us the choice of the word "refrain" is a surprising one to denote a right to join an organization which has a rule limiting resignation, and say I will join, but I am joining free and clear of that rule, and I won't respect it and I have a right that Congress gave me to join and then to leave at will any time I say.

So I don't think the language pushes in the Government's direction.

Unidentified Justice: You're very close to a waiver argument there.

Laurence Gold: I think that the argument... and we've gone back and forth in our minds whether or not the argument is a waiver or an argument simply that this is a narrow right, a right not to join in the first place.

Secondly, Section 8(b)(1)(A) was not in the Senate committee bill.

It was added on the floor by Senators Taft and Ball, and in adding it they excepted an amendment by Senator Holland, adding the proviso to the amendment, the proviso that says that nothing in the body of the amendment which prohibits restraint and coercion is intended to interfere with the right of Unions to prescribe their own rules with respect to the acquisition or retention of membership.

Unidentified Justice: Isn't this the kind of question that traditionally, courts have traditionally given the Labor Board a great deal of elbow room?

Laurence Gold: I think that this is, Chief Justice, the kind of question where the Board has the least possible elbow room.

I would concede that if all that I had to present to you was the bare language of the statute, unexplained by its evolution and by what its sponsor said, that this might be an area in which the Board's expertise weighs heavily.

But that is simply not the situation here.

Congress was considerate enough, good enough to debate these matters at great length.

And what we see is (a), as I was saying in the Senate, expressed statement by the sponsors of Section 8(b)(1)(A) that they had no intent to intervene in internal Union affairs and to regulate the Union/Member relationship.

And then when we move to the House, we find a very different situation.

In the House, there was a Section 7(a) in the House bill, very much like Section 7 now, including these words

"granting individual employees the right to refrain from concerted activities. "

and a Section 7(b) which regulated, which gave Union members rights, vis a vis the labor organization.

And in the House bill, there was a Section 8(B) which is very much like Section 8(b)(1)(A) now, dealing with this general question of restraint and coercion, basically physical coercion and interference with job rights.

Unidentified Justice: Mr. Gold, was there any discussion before or after or during the conference report with respect to this specific problem?

Laurence Gold: Yes.

Unidentified Justice: Whether a Union could fine a member for strike-breaking?

Laurence Gold: No, Justice White.

I cannot say that the discussion was in that specificity, but the discussion was as follows.

We reproduced the portions of the statement of the House managers who would certainly take the kindest view as to what--

Unidentified Justice: Which is the language of their statements do you most strongly relate?

Laurence Gold: --Page 31 to 32.

And I'd like to read it at the bottom of the page, simply to give the background to this statement.

The House passed a bill that had a Section 7(b) which gave rights to individuals as Union members and a Section 8(c)(4) which specifically stated that Union members would have a right to resign at will, and that it was an unfair labor practice to limit that right.

The bill went to conference.

Section 7(b) and 8(c) were dropped.

The House conferees said Section 8(c) of the House bill contained detailed provisions dealing with the relations of labor organizations with their members.

One of the more important provisions of this section, that limiting the initiation fees which a labor organization may impose, where a permitted Union shop or maintenance of membership agreement is in effect, is included in the conference agreement.

See Section 8(b)(5) and, has already been discussed, the other parts of this subsection are omitted from the conference agreement as unfair labor practices.

The House managers had the political job of going back to the House and saying we salvaged as much as was possible.

The House managers did not admit to failure in that regard lightly.

There is just no doubt, we submit, that this language says we tried to regulate internal Union affairs; we succeeded in... we tried to regulate internal Union affairs in Section 7(b) of our bill and 8(c) of our bill; we saved Section 8(b)(5) on initiation fees; we lost on everything else.

Senator Taft told the Senate that with regard to the scope of 8(b)(1) which he and Senator Ball had said was not intended to get into internal Union affairs, the conference bill was the same as the Senate bill.

Now, the Board which admits that all of these materials are embodiments of Congress' will and have to be explained, says that while no one... no one... so stated at the time, the real agenda of the conference was by adding the words the 7, which had not been in the Senate bill, it was the intent to create a right to resign at will, quite aside from the fact that that doesn't face up to what happened to Section 7(b) and 8(c)(4).

Unidentified Justice: But that's an argument that the failure to include the unfair labor practice, which was what... 8(c)?

Laurence Gold: Yes, Your Honor.

Unidentified Justice: Failure to include that, that supposedly limits the meaning of 7(a) is your argument?

Laurence Gold: Yes.

It limits it in this respect.

Neither the House nor the Senate ever claimed that Section 7 or 7(a) of the House bill or Section 8(b)(1) regulated internal Union affairs or this particular aspect of internal Union affairs.

And indeed, unless the Board is correct that Section 7(b) and 8(c)(4) of the House bill were completely redundant, the fair inference is that both the House and the Senate saw the issue of regulating Union activity that affects job rights or Union activity that involves restraint and coercion in the colloquial sense, harming somebody physically, engaging in mass picketing, and the rest, were different from the question of whether Congress ought to regulate the Union/Member relationship.

And everything in the Senate, the explanations of the addition of the proviso to Section 8(b)(1)(A), the failure in the Senate bill to include any right to refrain, the statements of Senator Ball--

Unidentified Justice: And I suppose if you were a member of the House or the Senate voting on this conference report on the final... and you just sat and read it... you may not know, wouldn't have had the faintest notion of all this background that you have just recounted.

You may have had some feeling about it, but you voted on the language of the bill.

Laurence Gold: --That's true, but you voted after knowing that you voted for a very different House bill, and that your appointed representatives came back and in black and white said--

Unidentified Justice: Said we lost a lot of stuff.

Laurence Gold: --We lost a lot of stuff.

And one of the things they lost was this.

Unidentified Justice: I know that's what you say, but nobody mentioned it.

They lost that unfair labor practice.

Laurence Gold: But that's the argument here.

The argument here is precisely that while they lost that unfair labor practice, that the Labor Board has the power under 8(b)(1)(A) which was never claimed to give the Board the power, the authority to recreate that unfair labor practice, and to do so out of whole cloth.

Unidentified Justice: If you're right about that, Mr. Gold, doesn't that cast some doubt on the correctness of the Court's decision in the Textile Workers case?

Laurence Gold: No.

I don't believe that that's so at all.

The Textile Workers case and all of the decisions through the Court's decision in Machinists & Boeing say that the Union/Member relationship is no greater than the contract created by the Union's constitution, and that union's have no right to take disciplinary action against non-members without engaging in a wrong.

The question here is whether the Board has the power to truncate the Union member contract by substituting its view that there is something somewhere in some brooding omnipresence in the sky that says that every Union rule limiting the right to resign is an unfair labor practice.

And our point is that nothing in Section 7(a), nothing in Section 7 as enacted, nothing in Section 8(b)(1), authorizes the Board to create that unfair labor practice; that the provision to 8(b)(1)(A) in terms denies the Board that authority, and that the legislative history shows that Section 7 was not intended to give the Board that authority, and that the fate of Sections 7(b) and 8(c)(4) demonstrates that this was not an issue of which Congress was unaware, but rather an issue where there were two different views.

The House's view was the Union/Member relationship should be regulated, regulated in detail, and in particular regulated on when people should resign The view of the Senate was that Congress should not move to that point, should not say who could be a Union member, how long he would be a Union member if he chose to be a Union member, and when he would get out.

But they were not going to tell the Unions what to do on those kinds of rules.

And it was the Senate view that prevailed, and the Board here, as in Insurance Agents, where the Court said that the first issue is did Congress ask the Board to answer a particular question and said that it had not, is the same here.

The Board just has not been given the authority to determine what Union resignation rules are good anymore than what the Union finds are reasonable.

These matters Congress left where it found them until... for the state courts, for the law of contracts, for the law of membership associations, and eventually for the Landram-Griffin Act where this matter was not regulated either.

Chief Justice Warren E. Burger: Mr. Fried.

ORAL ARGUMENT OF CHARLES FRIED, ESQ. ON BEHALF OF THE RESPONDENTS

Charles Fried: Mr. Chief Justice, and may it please the Court, having decided that a Union commits an unfair labor practice by seeking court-enforceable fines against members who have resigned to go back to work during a strike, the Court considers today the Board ruling that a Union may not accomplish precisely the same result by recasting its rule so as to forbid strike resignations by those who would go back to work.

Now, in considering that Board ruling, I respectfully remind the Court that the Court has frequently said that the interpretation of the Act is in the first instance for the Board, and that that interpretation by the Board of its Act is due great deference, so long as its interpretation is... and I quote Mr. Justice Stewart in the American Shipbuilding case...

"not inconsistent with the fundamental structure of the Act. "

Therefore, I think it is helpful to consider at the outset what the fundamental structure of the Act is.

And surely there is nothing more fundamental to the structure of the Act than Section 7.

Section 7 of the Wagner Act, an Act of 1935, was the centerpiece of that piece of legislation.

It was the great charter of liberties of the Union movement.

Employees shall have the right to self-organization and to engage in considered activities.

In 1947, the Congress sought to enlarge that charter of liberties and to add... and I quote here from the preamble of the Taft-Hartley Act... "further rights"... and I quote here...

"to protect the rights of individual employees in their relations with labor organizations. "

So that when the first part of Section 7 was enacted, it protected the rights of employees, vis a vis employers; the second part, which added the words

"and shall also have the right to refrain from any and all such activities. "

created an enlargement and a symmetry in speaking of the individual's rights vis a vis labor organizations.

Now, in the early days of Section 7 of the Wagner Act, employers regularly came to the Board and came to the Court to argue that they had made bargains with employees in which employees had bargained away those great rights, and they had made fair bargains, reasonable bargains, bargains for a limited time only, and that the employees had struck those bargains with their eyes open.

And the Board and the Court regularly turned those arguments down, saying that Section 7 rights cannot be bargained away.

The great case in this Court is National Licorice.

What the Board does here in its understanding of the fundamental structure of the Act is that the right in the second part of Section 7 also cannot be bargained away, no matter how fair the Union provision is, no matter how limited in scope, and no matter that the member entered into this bargain, bargaining away his rights with his eyes open.

So there is a symmetry here and the structure which the Board discerns seems to us to be a structure which makes sense, which is a coherent structure.

Indeed, the only exception which Section 7 admits this right to refrain relates to Union security clauses, and this Court was most emphatic over a generation ago in the General Motors case, that Union may not, by Union security clauses, demand any more than financial core membership.

That is to say, such an allegiance which does not submit an individual worker to Union discipline.

Unidentified Justice: Mr. Fried, has the Board's interpretation, present interpretation of these provisions been a consistent one throughout the years?

Charles Fried: Over the last dozen years, Justice O'Connor, the Board in every major case has held that a Union attempt to impose court-enforceable fines on workers who would go back to work during a strike, when those workers have indicated their desire no longer to be affiliated with the Union, constitutes an unfair labor practice.

So we don't have here some dramatic U-turn in the position of the Board, but a consistent picture which the Board has been elaborating since this issue first surfaced, and a picture which this Court has twice added its hand to the elaboration of.

Now, the Petitioners rely very heavily on the provision of Section 8(b)(A).

They rely on the proviso which reserves to the Union the right to make rules regarding the acquisition and retention of membership.

The Board's reading of that proviso, we submit, is a perfectly natural reading, but also a reading which carries forward a consistent, a coherent picture of the structure of the Act.

For what it says on one hand under Section 7, is the employee's relation to the Union is wholly voluntary.

He may join if he wishes and he may leave when he wishes.

And under the proviso as the Board reads it, what Congress is saying, it is voluntary on the other side of the relationship also.

The Union may accept a member if it wishes and may terminate, that is to say, expel the member when it wishes.

Thus, the Board's reading is a reasonable one and makes sense out of the structure of the Act.

The Petitioners' reading of the proviso would have the word "retention" take on the meaning that the Union has some kind of a power to hold onto a member who no longer wishes to maintain his membership.

Now, had the same really rather powerful argument which Petitioners and Unions urge and have urged consistently before this Court, arguments in terms of free riding, arguments in terms of solidarity, had those arguments been deployed to require an interpretation of the parallel word "acquisition" of membership, such that the Union may reach out and impose membership on an unwilling worker, this Court would reject that reading out of hand.

What the Board does here is to read the word 7.

Unidentified Justice: Well, Mr. Fried, I take it that your colleague on the other side seems to agree that if we were just looking at the words of the Act and structure, that maybe the Board has got a pretty good case.

But he rests on the legislative history which he claims requires that these words be given a different meaning than you are urging.

Charles Fried: Justice White, if the legislative history plainly indicated an intention of the Congress to allow this kind of strike resignation fining, we would not be here, we would not have this case for the third time before the Court.

Of course, the legislative history in our view is really quite indeterminate on this point, which is what presents the problem.

The closest, I think, in the legislative history that we can come to an elucidation of the meaning of the proviso are the words of Senator Holland himself who was the proponent of the proviso in its present terms to the Senate.

Unidentified Justice: I wouldn't think you would have to find anything in the legislative history that would support your view.

All you have to do is negative... the suggestion that the legislative history requires an interpretation contrary to yours.

It would be helpful, I suppose, if you had some support.

[Laughter]

Charles Fried: The greatest help, Your Honor, which I find in the legislative history is Senator Holland's own explanation of the function of the proviso, for he says... and I quote from a passage on page 20 of the Petitioners' brief... that

"the function of the proviso has to do with admission and expulsion of members. "

And that, of course, is precisely how the Board reads it; is that the proviso deals with the admission and expulsion of members.

That makes quite plain that what Senator Holland was seeking to accomplish was to reserve to the Union that same freedom of action which Section 7 reserved to the individual worker.

The relationship is voluntary symmetrically on both sides.

Unidentified Justice: Mr. Fried, may I inquire at this point, because it seems to me their stronger argument does not necessarily rely on the proviso, but rather relies on the fact that the House originated both the words the "right to refrain" and the provision that was deleted that said that this doesn't affect the right to resign.

And if you have those in the same bill that originated in the House, does not that imply that the right to refrain without the other would not encompass the right to resign?

Charles Fried: Justice Stevens, I think that the implication is wholly indeterminate in that respect.

The sponsor of the House provisions, Congressman Hartley, described the Senate... the final Senate version as being broader in scope in general.

That was his general word.

Now, whether that is intended to indicate--

Unidentified Justice: Well, let's take it one step at a time.

Would it not be true that within the House original submission, that at least your first reading of it should be that the right to refrain was not enough to accomplish what 8(c)(4), I guess it was, was intended to accomplish?

Why would they have had both provisions if the right to refrain did the whole job?

Just looking at the House itself for the moment.

Charles Fried: --Legislation is frequently full of redundant terms, of terms that go over the same grounds in specific ways as well as in general ways.

And, therefore, I think what one must ask is whether there is anything in the legislative history which, with sufficient specificity, indicates that by dropping that language the House members were attending to the point which my brother Gold insists they were attending to, or whether they viewed themselves really as acceding to more general and admittedly more debatable language.

Unidentified Justice: I understand the force of your argument on the compromise on the conference... I'm still trying to think through the initial drafting of the language, at least creates an inference that at that point they thought something more than the right to refrain was probably needed.

That's the first... it seems to me the first question we ought to ask ourselves.

But I see what you say; well, maybe they later on decided it might have been redundant.

It hardly would seem redundant in the very first bill.

That's the thing that--

Charles Fried: Of course, it's a fact that is well known, that when there's a fight... and my brother Gold is quite right... there were a lot of fights concerned with this legislation... it is often the part of prudence to recede in favor of vaguer, more general language, and hope that you will prevail later.

That is a very understandable tactic of compromise.

Unidentified Justice: --It apparently worked, too.

[Laughter]

Charles Fried: We shall see, sir.

Unidentified Justice: You mean prevail with the Board later?

With the Board at least.

You mean prevail with the Board later?

Charles Fried: Prevail with the Board, prevail in the courts, prevail with those who are considering the structure of the Act as a whole.

Having created perhaps some kind of an ambiguity, having created a question, the question then becomes, given the whole texture, given what Justice White referred to as the web and structure of the Act, did not the proponents of the House language in fact have their way, though they lost the specific wording?

That is the question which we put before you.

Unidentified Justice: Well, you're a little cynical.

8(c) simply... that proposed 8(c) that was eliminated was simply made a... just added a specific unfair labor practice with respect to... or did it?

Charles Fried: It added a specific unfair labor practice and--

Unidentified Justice: To protect the rights under Section 7?

Charles Fried: --Whether that was how the Congress was thinking, and whether the House had the matter that firmly in mind is something that I cannot give you assurance of.

It is a striking fact that what the House was concerned about in that right to resign provision was specifically to protect the rights of workers.

And this, I think, might help in answering Justice Stevens' question.

What the House was concerned with was, as they were throughout, in protecting the rights of workers who resigned and whom the Union then seeks to terminate as employees under a Union security clause.

And that matter surely was covered, and adequately covered by the more general language and by this Court's decision in the General Motors case.

Unidentified Justice: Does this phenomenon of calculated ambiguity in the legislative process help explain why courts, including this Court, have said we leave that to the Agency to wrestle with it and work it out?

Charles Fried: It does help, Mr. Chief Justice, but the Court limits the Board to asking whether its reading is not inconsistent with the fundamental structure of the Act, and that is why we come back again and again to that fundamental structure.

It is our contention that the structure which the Petitioners urge is not a coherent structure, whereas the structure which the Board's decisions consistently, over a period of a dozen years has been moving towards, is one which is balanced and fair on both sides.

Unidentified Justice: Mr. Fried, in the Curtis Brothers case, this Court did something along the lines that Mr. Gold has urged today; to wit, infer from Congress's failure to enact more specific provisions, that we should look to that failure to enact specific in interpreting the end result.

Do you think that that case poses some support for your opponent?

Charles Fried: It is evidently some support.

I believe it is not sufficient support in the overall context of what is being done.

I recall Senator Taft's words as he accepted Senator Holland's proviso.

He accepted the proviso without objection.

He found it perfectly understandable for, as he said... and I quote... his only purpose was, to quote,

"outlaw restraint and coercion as would prevent people from going to work if they wanted to go to work. "

That is how Senator Taft understood the general structure of what he was doing, and he thought that Senator Holland's proviso fit into that structure perfectly comfortably.

Now, therefore, I don't think we need to work the elaborate inferences from enactment and failure to enact which this Court was forced to resort to in the Curtis Brothers case, which I think are not necessary to a decision in favor of the Board's ruling in this case.

I would suggest that the picture which the Petitioners give of the word "retention" in that proviso is a picture which is similar to the word "detention", that it means that a Union is empowered to hold on to a member who no longer wishes to be a member.

And the Petitioners understandably insist upon the fact that after all here, so far as we know, the Union member was well aware of this provision either at the time he joined the Union or after the League Law 13 was passed and when he had a chance to get out.

But these Section 7 rights, the Court has said again and again, cannot be bargained away.

So the picture that is being offered by the Petitioners is a picture which the Petitioners, the Union in the Granite State case also offered to this Court, and in their brief they offered a picture of the worker as... and I quote here from their brief...

"a volunteer for military service, under strict discipline for the duration. "

Now, the picture which the Board offers of the Union/Member relationship was well stated by Mr. Justice Douglas in that same Granite State case, where he said it was a picture

"normally reflected in our free institutions, the right of the individual to join or to resign from associations as he sees fit. "

The question for the Court is whether the Board correctly understood the fundamental structure of the Act as enacting the military picture of the member as a volunteer for military service or Mr. Justice Douglas's picture.

Now, the Petitioners go back to the law of voluntary associations, and properly so, because the great case in this Court on the whole issue of fining Union members is the Allis-Chalmers case.

Since the statute says not a word about fining Union members, it's in that case that that right was established.

But the Allis-Chalmers case emphasized that the power to impose court-enforceable fines was predicated on the fact that the fined person "enjoyed full Union membership", and that what was at stake was purely internal... internal regulation.

Now, the state law on voluntary associations is said to clearly require, to clearly recognize the right of a voluntary association to restrict the right of members to resign.

And in this regard, the Petitioners rely on the weighty authority of corpus juris secundum.

I would engage in a battle of the giants here and bring in the weighty authority of Am.

Jur.

Second, which says that a member may lawfully resign at any time from an association or club, and a bylaw which restricts this right or makes the withdrawal subject to the organization's approval is invalid.

Well, the fact of the matter is, I would give no great weight to either of these weighty authorities because the fact of the matter is that the common law of voluntary associations is underdeveloped and in conflict on the subject of whether an association may or may not restrict an individual in his attempt to resign.

One thing, however, is quite clear; that those cases... and there are cases, common law cases, which recognize an association's right to restrict a member's resignation... all make it quite clear that those restrictions will be placed under the strictest court scrutiny to see whether they comport with state public policy of fairness.

The question which this Court must consider is whether the issue, not of the reasonableness of a Union fine, which this Court clearly remits to state law, but the question of the outer perimeters of the Union/Member relationship should also be remitted to 50 varying state court policies, so that in one state such a restriction is unreasonable; in another state such a restriction does comport with public policy.

Unidentified Justice: Might you have a little difficulty here?

This local operates in both Illinois and Wisconsin, does it not?

Charles Fried: Yes, that would be a very great difficulty, Mr. Justice Blackmun.

It would seem that this matter... and here is a fundamental difference which the Board has with the Petitioners... this matter of the outer limits of a Union's reach over those who would not be members is no longer merely an internal matter, but becomes a matter for federal labor policy, a matter indeed entrusted in the first instance to the Board as it interprets... as it interprets the fundamental structure of the Act.

Now, I would like, if I may, to speculate for a moment with the Court about the effects of this Board's ruling, the Board's ruling on the situation of Unions, because the suggestion is that this ruling is a disaster.

It would seem, first of all, that we must recall that this ruling is no great innovation.

After all, this Court has said in Granite State and in Booster Lodge that a Union may not offer the following bargain to a potential member: You may join with us, but only on condition that you agree, having resigned, not to go back to work during a strike.

What has the Union done here?

Through a merely technical reformulation, they offer a member the following bargain: You may join with us, but only on condition that you agree not to resign in order to go back to work during the strike.

Unidentified Justice: Well, you could as well argue that you are relying on a technicality to distinguish the case from Allis-Chalmers.

Charles Fried: It is a technicality, Justice--

Unidentified Justice: Resignation.

Charles Fried: --It is a technicality, Justice White, on which this Court has laid great emphasis, particularly in the words which said that a Union member is, in general, free to leave the Union and escape the rule.

I think this Court has viewed resignation--

Unidentified Justice: I was just repeating that it was... if you call it a technicality, it's a technicality... resignation.

Charles Fried: --But it's a technicality which--

Unidentified Justice: I didn't say it was unimportant.

[Laughter]

Charles Fried: --The other matter which--

Unidentified Justice: Let me ask you one question on deference, if I may, Mr. Fried.

Do you think the issue is one on which, if the Board had gone the other way, it would have been clearly wrong?

Or could it have gone either way on this issue?

Charles Fried: --Had the Board... had the Board said that a Union may restrict in this unlimited way the right of strike resignation, it is our contention that this would be at war with the fundamental structure of the Act.

Yes, sir.

Unidentified Justice: Would you say the same thing about the 30-day provision that two members speculated on?

Charles Fried: Had the Board decided that a Union is entitled to insist on certain formalities in processing strike resignations, and maybe even including a brief delay during which the Union absorbs the fact that these men are, in fact, resigning, that might well be within the discretion of the Board.

But a restriction as extensive as 30 days raises the very gravest doubts in our mind about it's consistent with those Section 7 rights and the notion that those rights may not be bargained away.

Unidentified Justice: I suppose one could say that that kind of 30-day provision makes it a harder case for your opposition.

Charles Fried: It would be a harder case for our opposition, but I don't believe, Mr. Justice Blackmun, that it would be a decision which we would care to defend.

I would like to simply underline one matter in terms of the effect of this decision.

For, though the Board adheres fast to the right of a member to leave the Union and escape the rule, the Court must remember that this is not a costless option.

The Union continues to be the mandatory bargaining representative of that worker, and in choosing to resign, he loses his voice and he loses his voice most particularly in regard to the question of whether he may participate in a vote to take that unit out on strike, and he loses his voice in deciding whether to accept a new contract... a new contract to end the strike.

So there is a penalty, there is a price that the man pays when he exists, when he exercises his right under free institutions to exit.

Finally, I might say that over the years, employers have found no more effective tactic in arguing against Union representation than to urge that Union membership is like joining the Army.

Now, it seems to me that the Board's ruling here would establish once and for all the notion that Union membership is a free relationship, voluntary on both sides, and this may very well open the way to a more solid form of solidarity, based indeed on the fact of an intrinsic loyalty.

I thank the Court for it attention.

Chief Justice Warren E. Burger: You have one minute remaining, Mr. Gold.

ORAL ARGUMENT OF LAURENCE GOLD, ESQ. ON BEHALF OF THE PETITIONERS -- REBUTTAL

Laurence Gold: I would like to warmly impress on the Court Judge Lernard Hand's injunction that the task of both agencies and courts is to recreate the gamut of values extant at the time from the legislative materials.

My brother Fried did everything, other than talk about what Congress said and did.

And the overall picture he drew, I would suggest, is it has nothing to do with the Act.

What is self-organization?

What is freedom of association?

It is not, and was not in Congress's eyes, the right of every individual to join the organization if he wishes and to leave if he wishes.

Of course, the very point of the proviso was to recognize that freedom of association is a group freedom, and the group creates its rules on who may join and who may not join.

An individual who walks up to a Union and says I want to join, but I won't abide by these rules, can be rejected because Congress's view of the freedom of association was the contractual view, the view stated by this Court in Democratic Party of the United States, and not the view that Mr. Fried creates out of whole cloth, and that's the Board, without paying the least bit of attention to what Congress was willing to do and not willing to do, enacted.

This bill was a compromise.

The issue of whether there would be a perfect freedom to join and leave was joined.

The determination was that there would be a different contractual relationship of the kind always recognized in common law.

There is no case saying that this kind of restriction is no good, and indeed there would be a zero issue here if, under the normal law of membership associations, these kinds of restrictions had not always been recognized.

Chief Justice Warren E. Burger: Your time has expired, Mr. Gold.

Laurence Gold: Thank you, Chief Justice.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

We will hear arguments next in Oregon v. the Klamath Indian Tribe.

Featured:

Furniture Moving Drivers v. Crowley - Oral Argument

Thu, 30 Aug 2012 22:14:48 +0000

Case:

Furniture Moving Drivers v. Crowley

Media File:

82-432_19840109-argument

Related Transcript:

82-432_19840109-argument

Transcript:

ORAL ARGUMENT OF GARY S. WITLEN, ESQ., ON BEHALF OF PETITIONERS

Chief Justice Warren E. Burger: Mr. Witlen, I think you may proceed whenever you are ready.

Gary S. Witlen: Mr. Chief Justice, and may it please the Court:

Today we ask the Court to determine whether union elections of officer are to be run under the supervision of the federal judiciary or the Secretary of Labor.

The key question is whether a court can order a union to conduct a new election of officers under Title I of the Labor Management Reporting and Disclosure Act in response to a suit filed by someone other than the Secretary of Labor.

It is our position that Congress vested the Secretary and only the Secretary with authority to bring suit to rerun an election of union officers.

Congress repeatedly rejected other enforcement schemes including suit by individual union members both before and after the addition of Title I to the legislation, and all of the bills considered over the course of two sessions of Congress relied upon the Secretary of Labor as the agent of government to supervise the rerun of union election of officers.

Thus, we seek reversal of the lower courts and reaffirmation of this Court's prior decisions that Title IV, not Title I, is to be utilized to resolve challenges to elections of union officers.

We ask that the ballots cast by the members of Local 82 in the 1980 election be returned to the union for tabulation.

I would like to highlight several of the facts set forth more fully in our brief.

First, suit here was filed based upon alleged violations of Titles I and IV of the Act which occurred at the union's nomination meeting.

The suit was not filed until after the union had mailed the mailed balloting packets to its members for voting in the election.

A temporary restraining order was subsequently issued without an evidentiary hearing some 17 hours before the ballots were to be picked up and tabulated for the stated purpose of preserving the Court's jurisdiction and in order to prevent the Plaintiffs, the Respondents in this case, from having to go through the electoral processes of challenging an election under Title IV.

As a result the union was unable to elect officers for an additional year after the temporary restraining order was issued.

In the interim the union was run by officers who had been elected four years previously.

The new election ordered by the Court was conducted under its rules and under its court appointed arbitrators.

Presently pending before the District Court these many years later is the application for attorneys' fees on behalf of Respondents, is a request for permanent relief, is the union's expected expense for reimbursement for the costs of the election that was conducted under the court's order, and for Petitioner Harris' claims for wages if it should be found that he was the successful candidate in the 1980 election.

Unidentified Justice: Who ends up paying for the arbitrator or whoever it is the court appoints?

Gary S. Witlen: The union paid for the entire cost of the election including the arbitrator with the understanding, which was discussed at the time, that the union could seek reimbursement from the Plaintiffs if the District Court's injunction was ultimately overturned.

Unidentified Justice: Would there have been that sort of expense to either party if the Secretary had brought the injunction?

Gary S. Witlen: Certainly some of the expenses of conducting an election would have been incurred, but the major expense, that in excess of $7,000 to pay the arbitrator's expenses would not have been incurred because the Secretary of Labor does not charge the union for its expenses and personnel in conducting the election.

That is the greatest bulk of the expense.

Unidentified Justice: Were the procedures for the election under the court order like the procedures that the Secretary would follow under IV?

Gary S. Witlen: There were major discrepancies between what the Secretary would do and what the union would do and what the court ordered.

Unidentified Justice: Can you say briefly what the difference would be?

Gary S. Witlen: Primarily the arbitrators that were appointed did not have the expertise of the Secretary to make evaluations as to the application of the Secretary's own administrative regulations or the union's constitutional regulations and requirements.

Unidentified Justice: The question I wanted to ask in my mind is the violations here concern the nomination meeting as I remember.

Gary S. Witlen: That is correct.

Unidentified Justice: Would you make basically the same argument that you make today if the action had been brought promptly after the nomination meeting after the alleged violations occurred?

Gary S. Witlen: We would not be making the same argument if the suit was brought prior to the time the ballots were mailed out.

Unidentified Justice: Would not some of your policy arguments be equally strong about having the wrong people running the election and so forth?

Gary S. Witlen: If we were to address that question prior to Calhoon and ignoring the prior cases of this Court we would say that the public policy issues and the legislative history arguments clearly discern a congressional intent that there be no pro-election Title I relief.

The arguments that we made were in recognition of the language in Calhoon and in Bachowski that seems to recognize some appropriate role for a court under Title I.--

Therefore, the line we are asking is a line that we would be happy to see the Court extend, i.e., to say there is no Title I relief, but we think that the line can be drawn in our favor in this case without going that far.

Unidentified Justice: But the whole question really is at what point in time has an election been conducted.

Gary S. Witlen: No, it is not the whole point because that--

Unidentified Justice: It is just a little different theory than Judge Campbell had as I understand it.

Gary S. Witlen: --It is only marginally different from Judge Campbell.

Our basic theory is that once you get to the point where the only remedy in order to grant the relief requested is to conduct a new election the Court does not have Title I jurisdiction.

Unidentified Justice: Well, that could have happened if they had brought the suit right after the nomination meeting.

The only effective remedy might be a court supervised election.

Gary S. Witlen: I think at that point the court could have merely nullified the nomination meeting and gone back to the union and say do it again.

There had been no ballots printed or distributed at that time.

I agree, however, that the logic of the public policy arguments and the logic of the legislative history that is set forth in our brief is that even at that point the court should not have had Title I jurisdiction to challenge even the nomination meeting considering the nomination meeting to be part of the election.

Unidentified Justice: Surely if ballots had been cast you think the election has in effect been had?

Gary S. Witlen: Certainly, which is the case in this case.

Unidentified Justice: There was not any legislative history about Title I except in the floor.

Gary S. Witlen: That is correct.

Unidentified Justice: It did not go through a committee?

Gary S. Witlen: No, it did not, Your Honor.

It was--

Unidentified Justice: No hearings on that aspect of it?

Gary S. Witlen: --No, there is no discussion in the legislative history.

Unidentified Justice: It was written on the floor?

Gary S. Witlen: Yes, sir.

Unidentified Justice: You say you had quarrel with some language in Calhoon, or what was the other?

Gary S. Witlen: Bachowski.

The legislative history that we have been referring to, I believe, makes at least three things clear about what the intent of Congress was in passing this statute.

First, is that Title IV was intended to be the specific vehicle for resolving disputes concerning the conduct of union election of officers.

That procedure and Section 402 procedures wet intended to provide the exclusive means of obtaining an order setting aside an election and providing for a rerun.

Finally, the statutory goals of democratic elections could not be insured by any agent of the government other than the Secretary of Labor, and it bears repeating that all of the bills considered in the House and the Senate provided that rerun elections were to be conducted by the Secretary of Labor regardless of how you happen to get to the point of having an order to rerun the election.

I submit that this case provides a textbook example of how the safeguards and objectives carefully established in Title IV will inevitably be nullified when a court acting under Title I is permitted to substitute its judgment as to how an election should be conducted for that of the Secretary, the Congress or the union involved.

For example, the statute specifies that elections are to be conducted no less frequently than once every three years and that the winners are to be installed regardless of whether there is a challenge to the outcome of that election.

Well, here we did not have an election for four years, and in the interim we had lame duck officers responsible for running the union.

Unidentified Justice: Was an election conducted this January?

Gary S. Witlen: There was an election conducted in December of 1983.

Unidentified Justice: December.

Gary S. Witlen: Yes.

Unidentified Justice: So why is it not moot?

Gary S. Witlen: There are a number of arguments made on behalf of why it is not moot.

First is that in order to resolve the matters presently pending before the District Court we must have the determination from this Court as to whether the District Court had jurisdiction to issue the type of relief it ordered.

Second, the Court itself has held in Glass Bottle Blowers the happenstance occurrence of an intervening election does not deprive either the Secretary or the courts of the authority to back to investigate a prior election in order to determine whether any of the alleged violations which occurred in that election could have tainted the second election.

We think that is certainly the case here.

One of the issues that was never resolved by the District Court in this case was the legality of the continuous good standing requirement as a condition of eligibility to run for office.

That is a question that has not been resolved.

Finally, we believe that this case would fall within the Court's general parameters of a case capable of repetition yet evading review because of the short time limitation and the time it takes to get a case up to this Court.

Another statutory goal that cannot be accomplished under Title I is that of specifying that the statute only specifies minimal government intervention in union affairs and leaves it to the unions to establish rules in its bylaws as to how the election will be conducted.

The union has been found to be free to conduct its elections in accordance with its own procedures so long as the procedures comply with the statute.

Here in contrast the District Court issued an injunction which provided for detailed rules, took the entire administration of the election procedures out of the hands of the union and placed them into the hands of arbitrators that it happened to find willing to conduct this type of an election.

Most importantly, congressional history indicates an intent to reserve challenges to the conduct of the election until after the election has been completed and to prevent any faction in the union from delaying the election, and even once that election was completed if a member sought to challenge its outcome, court intervention was to be delayed until after the union was given an opportunity to review the problem and attempt to redress the grievance.

Then if a member was dissatisfied with the union's action until the Secretary of Labor, the agent of government most familiar with the union's affairs, conducted an investigation and made a determination not only that there was a violation but the violation affected the outcome of the election.

Elections were not to be set aside merely for technical violations, and they were only to be set aside after a hearing on the merits of a case.

Here the relief that was granted was granted after a hearing on a preliminary injunction.

There never was a hearing on the merits.

The Respondents were not required to exhaust the internal union procedures, and the union was not given full advantage of those procedures to remedy this matter itself.

There was no compliance with the time limitations which severely restrict the amount of time that the Secretary of Labor has to investigate a complaint and file a suit.

Most importantly the procedures entirely ignored the Secretary of Labor, precluding him from investigating the complaint, precluding him from being able to attempt to settle a complaint before it was actually filed in court, precluding him from serving as a screening agent to prevent the court from spending time on frivolous issues, and preventing him from consolidating all of the potential litigation concerning the outcome of the election in one proceeding before one court.

In fact, by deciding some of the issues here under Title I but deferring other issues for a Title IV proceeding, the District Court in essence insured that there will be two elections, two suits to challenge the outcome of this election.

Indeed, by not resolving the 24 consecutive month continuous good standing eligibility requirement the court did not even guarantee that his own election was to be protected from a challenge after that election had been challenged.

Thus, we do not believe that the statutory goals can be accomplished in a proceeding under Title I.

For that reason we do not believe that it can ever be appropriate within the meaning of Section 102 for a court acting under Title I to grant the relief of ordering a union to conduct a new election of officers.

Unidentified Justice: Can it enjoin one?

I suppose it can in the sense if you can set aside nominations.

Gary S. Witlen: It would depend at what--

Unidentified Justice: I thought you agreed they could set aside nominations under Title I.

Gary S. Witlen: --It would depend at what point the election was sought to be enjoined and what relief was being requested.

Unidentified Justice: The only request is to hold a new nominating meeting.

Gary S. Witlen: And that the election be enjoined until such time that that could take place.

Unidentified Justice: There cannot be an election without some nominations.

Gary S. Witlen: If that type of suit was brought prior to the mechanics of the balloting taking place and it relied upon a legitimate Title I basis for its complaint then we think that the prior decisions of this Court suggest that the District Court does have jurisdiction to entertain such a suit.

Unidentified Justice: So appropriate injunctive relief is acceptable.

Gary S. Witlen: It might be appropriate under the correct circumstances, yes.

Unidentified Justice: Now if you go that far, supposing they do decide we'll have to have the election two weeks late because of the nomination and we've enjoined the old elections.

They have a new nomination meeting, and I will order that there be some impartial observer at the election.

He would have no power to enter that kind of an order?

Gary S. Witlen: No, I do not believe that he does, Your Honor.

Unidentified Justice: Any relief that pertains to the conduct of an election itself is beyond his statutory power?

Gary S. Witlen: Anything which inserts the court in the actual conduct of the election, I believe, is beyond the statutory power.

Unidentified Justice: You would not go so far as to say he could not delay the election two weeks and then say go ahead and conduct it pursuant to your normal rules.

Gary S. Witlen: Not in the appropriate circumstances, and that is when the suit is in fact based upon a legitimate Title I issue and when it has been brought at a time before the balloting has taken place.

Unidentified Justice: He could change the date of the election but could otherwise exercise no supervision whatsoever over it.

That is your position?

Gary S. Witlen: That is correct.

Unidentified Justice: Is the Secretary's action under Title IV subject to review?

Gary S. Witlen: Certainly.

Under this Court's decision in Bachowski a member who has been denied a new election from the Secretary can seek review of the Secretary's decision.

Unidentified Justice: So it is merely a question of exhaustion rather than judicial power?

Gary S. Witlen: Certainly.

We are not saying that the courts have no role in the conduct of elections, but merely that that role was deliberately, intentionally and repeatedly delayed until after these other procedures had been exhausted, the union's exhaustion and the Secretary of Labor's exhaustion.

Unidentified Justice: Mr. Witlen, who would invoke the Secretary's authority?

Gary S. Witlen: Any complaining member has a right to go to--

Unidentified Justice: Well, take your situation.

Suppose there had been an injunction setting aside the initial nominating meeting and calling for another one, and at that point they had one and nominees.

Now, how do you get the Secretary in?

Gary S. Witlen: --Any of the Respondents could have filed a complaint with the union and 30 days thereafter gone to the Secretary of Labor.

Unidentified Justice: But there has to be that waiting period of 30 days then.

Gary S. Witlen: There has to be a time for the union's procedures to work and then either 30 days after not getting a decision from the union or 30 days after the union decision then they go to the Secretary.

Unidentified Justice: Well, assuming you have a nomination meeting and the election is two weeks later.

Now under Title I you can go right into court I gather.

You do not have to wait 30 days?

Gary S. Witlen: That is correct.

There is no exhaustion... I should say there is an exhaustion requirement, but it is more easily waivable by the District Court than the statutory requirement under Title IV.

I would like to reserve the remaining time available.

Chief Justice Warren E. Burger: Very well.

Mr. Garvey.

ORAL ARGUMENT OF JOHN H. GARVEY, ESQ., ON BEHALF OF THE FEDERAL RESPONDENT IN SUPPORT OF PETITIONERS

John H. Garvey: Mr. Chief Justice, and may it please the Court:

Let me begin by saying a word about the question that Justice Brennan asked, how if the Secretary had conducted this election might it have been run differently.

Let me give a few general examples and then a few specific examples.

Section 402 of Title IV Says that when elections are to be rerun they are to be rerun in accordance with regulations that the Secretary is to promulgate.

Those regulations appear in part in 452 of 29 CFR.

I think it goes without saying that in running the election the Secretary would be more familiar with the operation of those regulations than would a court.

The second difference is that this is the first time that the district judge had rerun a teamster election, and he was no doubt not as familiar with the teamster's constitution and bylaws as the Secretary would be because this would not be the first time the Secretary had rerun a teamster's election.

Some more particular examples might be one of the things that we do not find in the District Court's injunction that the Secretary does do in the course of elections is to read all of the publications that are sent out in the course of the election, not just campaign materials, but the Secretary rereads the proofs of the newspaper that the union circulates, for example, to make sure that it does not support one side rather than the other.

You do not see any provision for that.

So in that sense the Secretary would often do more than the District Court, and in some cases the Secretary would do less than the District Court did.

For example, the injunction here provides that the arbitrators were actually to run the nominations meeting so that means somebody would be up at the podium running the meeting.

When the Secretary has a nominations meeting rerun they have a pre-election conference at which the rules for conducting the meeting will be set out, and there will be an observer there to take notes to make sure that things to all right.

But it will not actually be run by the Secretary.

So sometimes they do more.

Sometimes they do less.

Sometimes they simply do things differently.

For example, in the joint appendix I notice in the District Court's docket that one of the issues that arose in the course of this election was a question about whether James Miller was eligible.

Under the District Court's injunction those questions about eligibility were to be determined in the first instance by the arbitrators and then taken to court.

If the Secretary had been rerunning the election and there were nothing faulty about the union's own procedures toward determining eligibility requirements the appeals on eligibility questions would have followed those normal procedures to the union's general president and then the general executive board and then to the Secretary.

Unidentified Justice: Mr. Garvey, in this case was there objection to the order before it was entered by counsel?

John H. Garvey: By the Secretary or by the parties?

Unidentified Justice: By anybody.

John H. Garvey: There was considerable negotiation in the District Court once it had been decided that the court was going to enjoin the election.

Unidentified Justice: Was it ever pointed out to the court it would be improper for the court to run the election?

John H. Garvey: Yes, indeed.

I believe that was the basis for the union's objection.

Unidentified Justice: This was before the court entered the judgment or afterwards?

John H. Garvey: That was before the District Court entered the injunction.

The Secretary did not intervene in this action until the Court of Appeals.

Unidentified Justice: Mr. Garvey, I assume you have no trouble with mootness either?

John H. Garvey: No, we do not, Your Honor, both for the reasons mentioned by Petitioners and because we believe that the District Court by grabbing the ballots in this case has prevented the Secretary from performing his role in the Title IV statutory scheme up until today up until these ballots are released.

Unidentified Justice: You do not complain about this last election.

You do not find any fault with this last election.

John H. Garvey: There have not been any complaints.

The Secretary is not entitled to act on his own until he receives a complaint, and to date there have been none.

Unidentified Justice: Where does the Secretary draw the line between Title I and Title IV?

John H. Garvey: That is the other thing I would like to address in the time I have remaining.

Let me first say a word about where we get--

Unidentified Justice: Unless he gives Title I no room at all.

John H. Garvey: --No, that is not so.

The Secretary does give plenty of room for Title I.

The line that we would draw is that... Let me back up just one step and tell you where we get.

In the statute we think Congress could have been a little bit more explicit than it was about how Titles I and IV ought to fit together, but we think it gave at least three signals.

The first of those is that Section 402 sets out a very detailed system, which Mr. Witlen outlined, for rerunning elections.

The second signal is that Section 102 as you suggested cautions the district courts in Title I cases that they are to provide only such relief as is appropriate.

The third signal that Congress gave is in Section 403 which says that the Title IV procedure for challenging an election which has been already conducted shall be exclusive.

Now, that language does not solve this case completely or we would not be here, but its purpose, I think, provides considerable assistance because the reason Congress put it in the statute was that Congress did not want the courts rerunning elections.

In line with all of that the line that we would propose for accommodating these is that Title I relief should never be considered appropriate under Section 102 if Title IV relief is adequate to resolve the election violations that are being complained of.

Let me give an example or two about what kinds of Title I relief would be appropriate in the context of union officer elections.

One is the Finnegan case that this Court decided two years ago.

That involved complaints about equal rights and free speech in the context of a union officer election.

You may recall that there a union's business representative had been discharged after supporting the incumbents who lost the election.

In that sort of case there is not relief available under Title IV because what he wanted was reinstatement, and running a new election would not give him that necessarily.

Let me give another example.

In the Sadlowski case decided the same term as Finnegan there was again a complaint about free speech rights in connection with a union officer election.

There the complaint was that the union had improperly amended its constitution to forbid nonmember campaign contributions.

In that case Title IV relief would not be adequate because there was not an election even on the horizon.

Unidentified Justice: What about this case?

Was Title IV the exclusive remedy for anything that happened at that nominating meeting?

John H. Garvey: I do not know that Title IV is the exclusive remedy for anything that happened--

Unidentified Justice: No, in this case.

John H. Garvey: --In this case, but the election could only be--

Unidentified Justice: I understand that.

That is not my question.

My question is what under Title I could these complainants have done?

John H. Garvey: --Might have sought damages.

Unidentified Justice: After the election, that's all.

Sought damages.

What else?

John H. Garvey: They might have sought damages.

Unidentified Justice: Do you agree that they might have run into court and got an injunction setting aside the nomination meeting as your colleague here?

John H. Garvey: No.

We would draw the line short of that point, and the reason--

Unidentified Justice: So the Secretary says that that kind of injunctive relief would be barred?

John H. Garvey: --That is right.

Unidentified Justice: But the union does not agree with you.

John H. Garvey: Mr. Witlen represented that they were not going to be that strict about it, but we would draw the line short of rerunning the nominations meeting because that kind of relief unlike... Well, let me give you another example in the course of this election about what might have been done.

Suppose that these Respondents were complaining that they had not been given ballots.

I think that injunctive relief under Title I might be appropriate to direct that they be given ballots.

Now that sort of relief unlike rerunning the nominations meeting, unlike what happened here in that sort of situation there is not the delay of the election which is involved here.

Unidentified Justice: Could the court order that they be considered nominated and be put on the ballot?

John H. Garvey: I am reluctant to say no because Professor Cox suggested in the course of the Senate hearings on this that that might be an appropriate remedy to order in this case that Mr. Lynch's name be put on the ballot for Secretary/Treasurer, but again that unlike rerunning the nominations meeting does not involve any delay, does not get the court involved in the details of how the meeting should be run.

Unidentified Justice: Most courts do not get these things heard in two or three days.

That might take two or three weeks to even get before the judge for a decent hearing.

Can he enter a restraining order meanwhile?

John H. Garvey: That gives me trouble.

Even if the district court did--

Unidentified Justice: Well, if you say no you are in effect saying there is no Title I relief for anything in this case.

John H. Garvey: --I am perfectly willing to say that there is no equitable Title I relief for the problem in this case because the Title IV relief is perfectly adequate to resolve this problem.

As we point out in our reply brief the kinds of violations that the District Court suggested might be meritorious, the exclusion of Lynch from the ballot, the exclusion of Crowley and others from the nominations meeting would, if proven, be Title IV violations that would justify rerunning the nominations meeting and rerunning the election, precisely the relief that the District Court afforded in this case.

On the other hand, neither the Court of Appeals nor the Respondents has advanced any advantage that Title I actually holds over Title IV procedures in the context of this very case.

One of the suggestions that is made is that somehow--

I see my time has expired.

Unidentified Justice: Mr. Garvey, I have one little question.

On this mootness point you ask us to order that the ballots be returned to the petitioner.

What good does that do?

John H. Garvey: It is only after the ballots have been counted that a claimant is entitled to come to the secretary with a complaint.

Unidentified Justice: That is what you ask us to do at this stage.

John H. Garvey: That is right.

Unidentified Justice: So we just ignore the new election?

John H. Garvey: No, not necessarily.

What would happen is--

Unidentified Justice: What do we do with the new election?

John H. Garvey: --Perhaps nothing, but that is the decision that has to be made by the Secretary.

If the ballots are counted and if the complaint--

Unidentified Justice: Can we have something to do with deciding it, or do we have to just leave it all--

John H. Garvey: --Perhaps eventually after the Secretary brings a suit.

Unidentified Justice: --You did not bring this case to the Secretary.

You brought it to us.

John H. Garvey: We did indeed to complain that the District Court had prevented has prevented the Secretary from acting.

If I may just answer your question about what you should do.

If the ballots are returned to the Petitioners they will then be counted.

Members are at that point entitled to complain to the Secretary about the violations which the District Court unsuccessfully, we suggest, attempted to remedy.

At that point under 402(b) the Secretary is to determine if there are violations which have occurred and not been corrected.

Now it is possible that the Secretary will conclude that as a result of the District Court's rerun and the subsequent supervening 1983 election that it may not be necessary to ignore the 1983 election and do it all over again.

On the other hand it may be so, and that is a decision which cannot be made until the case is brought before the Secretary.

Chief Justice Warren E. Burger: Mr. Stern.

ORAL ARGUMENT OF MARK D. STERN, ESQ., ON BEHALF OF THE RESPONDENTS

Mark D. Stern: Mr. Chief Justice, and may it please the Court:

The issues raised on this appeal are less numerous and of less general application than the government and the union have suggested.

The mootness issue here is primarily one of whether a party may seek to disturb on appeal portions of a District Court order to which it stipulated, namely, the running of a new election.

Unidentified Justice: They did not stipulate to the fact that there should be a new election.

Mark D. Stern: Yes, they did, Your Honor.

They did not stipulate to its being court supervised.

They specifically stipulated to a new election in an attempt to deprive the court of jurisdiction, and I mention only after, Your Honor, they heard the evidence in the preliminary injunction hearings did they make that offer.

It was not because of the temporary restraining order, Justice White, but after they heard the evidence that they made that offer when they realized this was going to be rerun at one point or another, and it would be less disruptive and less unsettling to the union to rerun it sooner rather than later.

Unidentified Justice: They never agreed that a court should run it.

They never stipulated... I do not suppose they would even be here if they thought it was all right for the court to run the election.

Mark D. Stern: They did not feel it was all right for the court to run the election, and in fact that is why the factors mentioned by the government existed.

The union refused to run the election.

The union refused to run the election meeting.

The union refused to name arbitrators.

The union, in fact, blocked the triple A from being the arbitrators rather than honor ballot association by calling them up and telling them they did not approve of that.

The union did not have any publications to be sent out.

It did not have any publications that were sent out.

So it was not because the Secretary did not run this election, that the union was not involved in the meeting or in determining who was going to run that meeting.

It was because the union refused to, and strictly because the union refused to.

Now, the second issue in this litigation is as was mentioned by Justice O'Connor and Justice Marshall whether the election has become moot as a result of the December, 1983 election, and I suggest you have to really stretch the imagination as the Secretary of Labor did to come up with a reason why this case is not moot on that account.

Lastly the one question on the merits that is before the Court is whether a district court is so restricted in its remedial powers under Title I of the Landrum Griffin Act that it cannot order minimal supervision and the few terms it actually imposed on the union to remedy the flagrant violations of Title I that occurred in this case.

Now, I ask the Court to consider the fact that when a Title IV election is rerun it is the court, not the Secretary of Labor, that sets the terms for rerunning that election.

It is the Secretary of Labor who investigates the complaint and who goes and observes the election, but it is the court that sets the terms.

It is not as--

Unidentified Justice: How often do district courts get into that posture?

Mark D. Stern: --Every time there is a recalcitrant union that does not settle the matter.

In conciliation proceedings the court must get into that posture.

The Secretary has no power to order a new election.

A court must order it.

Unidentified Justice: Once ordered, why can't the district judge let the Secretary take over?

Mark D. Stern: He can, but I believe the practice is that the Secretary submits a proposed order to the court and the court acts on the proposed order, and therefore it is the court's order that is in fact what determines the terms.

What opposing parties argue here is not the court lacked jurisdiction because the Secretary concedes that as do the union and the government and the AFL-CIO.

What they do argue in essence is that the only power a court has is to grant damages in a situation such as this.

I point out to Your Honors that this election suit was filed three weeks after the nomination meeting, just one week later than the union says would have been proper and all right.

There is nothing in the record to indicate when the ballots went out, but I suggest that if they had gone out by the three week time they probably had gone out by the two week time.

In fact, to rule that when the ballots go out is the determining factor gives every union a way out of getting any relief under Title I.

As soon as nominations are made you walk over to the printer, xerox your ballots and you mail them out.

It takes a day.

Nobody can get into court with that speed and get relief.

Now, an award of damages cannot correct a violation in a nomination meeting.

It cannot correct a violation that takes place during an electoral process but before the conclusion of it.

All it can do is attach a stigma to the person who complains about the violation of having gotten damages against the union, taken money out of the treasury of the union for him or herself, a stigma that they cannot get rid of.

Now if they had accomplished something else, gotten a new election run, in the process that stigma would not be serious, but having no other--

Unidentified Justice: Well, the Secretary of Labor could order that.

Mark D. Stern: --Yes, but if you have a recalcitrant union the Secretary of Labor in practice cannot order that until the term has virtually run out for the people elected unlawfully.

It takes an average of two and a half years with cases litigated.

The maximum term under the act is three years.

That is more than 75 percent of the term having been sat, and the union run by people unlawfully elected.

Anyone unlawfully elected can take the 90 days, not 30 days, under the Act that they must give the union to consider the matter internally, take the 60 days with the Secretary and delay on top of that another two years in the courts before an order is issued.

It does not take much, if any, skill to do that.

Unidentified Justice: Why can't the Secretary act without the court action?

Mark D. Stern: Only if the union agrees and if you have a person who has engaged in flagrant violations of Title I, Justice O'Connor, I suggest that is not the person who will agree, who will make the conciliation or correct it internally.

That is a determination of fact that Judge Keeton made in this case.

The proposition that damages are the only relief that can be effectively granted in an electoral process under Title I flies in the face of the legislative history, the language and this Court's interpretation of the Act, and it is incompatible with the primary purpose of the Act.

In Hall v. Coal this Court determined that district courts have great flexibility and discretion in fashioning appropriate remedies for violations of Title I.

In the Steelworkers decision this Court determined that in the electoral process Title I rights are particularly critical and deserve vigorous protection.

To separate those two propositions from each other, to except the one from the other and visa versa largely nullifies Title I in what this Court has determined to be the most important area for its functioning, and I would also suggest virtually the only area in which members of unions interested in promoting democracy in their union in fact do come forward and act.

Title I confers on union members comparable rights to those we possess as citizens of the United States.

It is the foundation of the Landrum Griffin Act, the right to free speech, assembly, equal treatment under the law, due process.

Title IV governs the particulars of an election process.

As a remedial statute the Landrum Griffin Act is to be broadly construed to express its goals.

To adopt the position urged by the government and the union in this case will largely nullify Title I in the area that has been determined by this Court to be its most important area, to function and frustrate the congressional goals expressed in the preamble to the Act.

Adoption of our position--

Unidentified Justice: May I ask, Mr. Stern, did I understand you to say that the Secretary's procedures including judicial review mean that there is a two year delay in conducting a local--

Mark D. Stern: --An average of two and a half years, Justice Brennan, which is more than 75 percent of the term.

I believe it would be five-sixths of the term.

Unidentified Justice: --Are there any statistics to support that?

Mark D. Stern: Yes.

They were cited in our brief and referred to in the law review articles that have compiled those statistics.

That is not the average for every complaint brought to the Secretary.

It is the average cases that go to litigation.

You have to assume that an officer willing to violate Title I in the flagrant fashion that these officers did is going to use every opportunity for delay under the Act and will fall into the two and a half year average.

Now, as I indicated before damages is a liability, not a remedy, under Title I, and the granting of damages will chill, not foster, the further exercise of democratic rights by union members.

There is no indication in the history of this Act that recalcitrant union leaders who unlawfully influenced an election's results are not to be removed in an expeditious and democratic fashion.

In fact, the history of the Act indicates that they should be removed once it has been determined that they are unlawfully elected.

The District Court in this case issued its orders after factual hearings held within the first month that this complaint was brought and determined that the officers were unlawfully elected.

In fact, the union concurred in that by coming forward as soon as it heard the evidence and saying a new election should be run.

The union alone in this cases suggests that the language already conducted in the statute should be interpreted to mean commenced, as soon as matters are commenced.

The Secretary of Labor backed off that position in its brief and reply brief.

In fact, it says at the present time that this election still is not completed and that it is not proper for members to raise Title IV complaints about this until the ballots are taken out and counted.

On the other hand, it seems to be saying that no injunctive relief can be granted right after the nominations meeting.

Unidentified Justice: What if the elections had been completed and the ballots been taken out and counted, then would there be a Title I remedy based on the allegedly illegal nominations?

Mark D. Stern: No.

We think the point in time of counting the ballots and letting the people know where they came out is in fact the time that Title IV talks about as removing any matter into the area of the exclusive jurisdiction of the Secretary.

Unidentified Justice: After the election is actually conducted.

Mark D. Stern: That would be the conducting of an election.

Unidentified Justice: The ballots cast and counted, is that it?

Mark D. Stern: Other than injunctive relief... Injunctive relief would be barred.

Unidentified Justice: No, but triggering the Secretary's authority.

Is the conduct of the election the counting of the ballots?

Mark D. Stern: The conduct of the election... The election would be conducted at the point that the ballots are counted.

To make it any point earlier could make it possible for a union to accomplish that act the day after the nomination.

Unidentified Justice: Suppose you decided that the courts are just too slow.

Before the election could you go to the Secretary?

Mark D. Stern: No.

There is no way you can go to the Secretary before the election.

He has no jurisdiction.

The Secretary only has remedy.

A hydrogen bomb, wipe out the old election and start fresh and new.

The Secretary has no flexibility to remedy a minor violation and let the election proceed.

Unidentified Justice: So you do not think the Secretary would have any jurisdiction or authority whatsoever if somebody complained to go into court and enjoin the election that has not been held yet?

Mark D. Stern: He does not.

Unidentified Justice: Do you have law to that effect?

Mark D. Stern: The Cucho amendment took that power away from the Secretary and gave it to members.

That is what the Cucho amendment was.

Unidentified Justice: I know it gave it to members, but did it also take it away from the Secretary completely?

Mark D. Stern: Yes.

The Secretary says in his own regulations that he has no power to remedy Title I violations, that they are to be remedied by a different means by a member in court.

That is stated in his regulations.

Unidentified Justice: After the election... Let's assume before the election the only complaint is that nominations, the very nominations here.

You say that you can go right into court before the election to remedy that.

After the election you have to complain to the Secretary about the very same Title I violation.

Mark D. Stern: Yes, and if it was intentionally done you can expect that it will be two and a half years later that it is remedied if you wait till after.

Now, I would like to address a few points made by opposing counsel in response to questions presented by the Court.

First, the 24 hour rule... The court below did not determine that there would have to be two court cases because the 24 hour rule was enforced in the election that took place in 1981, and no objection was made to its going there so there would not be a second case about it.

Secondly, the union in this case could have suggested a third party with the expertise satisfactory to it.

Instead it chose to frustrate the selection of the third party and agreed to accept the third party that was nominated without agreeing to the supervision of the court in general.

Unidentified Justice: Mr. Stern, don't all these arguments go to whether this particular judge handled this particular matter in a proper way rather than the power of the court to handle it at all?

Mark D. Stern: I do not think there is any question that the court has the power to handle Title I violations, and I do not think there is any question in this case--

Unidentified Justice: As I understand your opponents even though they may not phrase it in terms of power they say there is virtually no power in a district court until after the election has been conducted in trying to figure out when the election has been conducted.

There is an awful lot of argument between the parties about whether the judge did everything right or whether he was too slow or the union was recalcitrant in this case.

It seems to me that is all entirely immaterial in this case.

We are dealing with a rather narrow question of law.

Mark D. Stern: --Yes.

I believe union's recalcitrance is germane to the court's consideration on one point, and that is what the alternative remedy to these members would be when you have a person who is recalcitrant and willing to delay the processes that exist under Title IV and only relevant to that point.

Unidentified Justice: Mr. Stern, may we come back a minute to the discussion you had previously?

In this case the District Court entered the picture one day before the ballots were being counted, did it not?

Mark D. Stern: No.

It entered the picture before that.

That is--

Unidentified Justice: It entered the injunction that the ballots not be counted the day before they were to be counted.

Mark D. Stern: --A temporary restraining order, yes, Your Honor.

Unidentified Justice: Right.

If that procedure is appropriate the Secretary's authority always could be usurped by a federal court, could it not?

Mark D. Stern: Your Honor, I think the number of cases that this could occur in are minimal, and that is--

Unidentified Justice: Why is that?

That is what I do not understand.

Mark D. Stern: --Because it could only occur in an overlap case in the first place where there is a clear violation of Title I.

This Court determined that a court cannot do that where there are violations of Title IV and only violations.

Unidentified Justice: I do understand that, but if a violation of Title I is claimed could the court always enjoin the counting of the ballots?

Mark D. Stern: Yes, it could if it deemed it appropriate.

It might deem lesser remedies appropriate.

Unfortunately the Secretary only has one choice and that is all or nothing.

I would like to suggest that the stepping in the day before and giving a temporary restraining order and holding off for several months before entering its final preliminary injunction in this case in a sense promoted the purpose of this Act that the opposing counsel hearsay were frustrated.

It allowed the union to engage in conciliation and get a prompt resolution.

It just conciliated in front of the court and in fact the conciliation was successful.

The union proposed all but several very minor terms of the order with the exception of the court's supervision, and those minor terms of the order to which the union objected had nothing to do with the running of the election.

It had to do with enjoining future violations and the like and not posting bonds for the appeal.

Secondly, it afford the union as much of an opportunity to voluntarily redress the wrongs that had been engaged in as a Title IV process would have.

It just supported it at an earlier time, and it did not encroach on Title IV's principle of not removing persons elected from office until it is reasonably clear their election was unlawful.

It was reasonably clear as soon as the evidence was heard in this case, and Judge Keeton so determined.

The processes engaged in by the District Court here and approved by the Court of Appeals balance the rights and remedies provided in Titles I and IV in such a way as to allow them to compliment each other rather than conflict with each other.

Unless there are any further questions we respectfully request the Court to affirm--

Unidentified Justice: Let me ask, say the election had taken place in this case and you went to the Secretary and complained and he investigated and thought that the nominating process was defective and a new election should be running.

Then he has to sue does he not?

Mark D. Stern: --He has to sue unless they agree to it.

Unidentified Justice: Suppose he goes to court, what does he have to prove?

Mark D. Stern: He has to prove not only the violations occurred but that they may have--

Unidentified Justice: What it is a violation of?

Title I?

Mark D. Stern: --Title IV.

It has to be a violation of Title IV.

Unidentified Justice: So the two sections overlap in the sense that he would prove there was a violation in the nominating process.

Mark D. Stern: A violation of Title IV.

A violation of Title I would not allow the Secretary to seek relief afterwards.

Unidentified Justice: I know, but it just happens to be a violation... It was a violation of Title I also.

Mark D. Stern: Fine.

Unidentified Justice: He goes to court.

What kind of a decree does he get?

Mark D. Stern: First he has to prove, Justice White, that the outcome may have been affected.

Unidentified Justice: Assume he does.

Mark D. Stern: Then he gets a decree that provides for the election to be run under certain terms and conditions--

Unidentified Justice: By the Secretary.

Mark D. Stern: --For the Secretary to observe the election.

Unidentified Justice: But is it not pursuant to regulations that the Secretary has?

Mark D. Stern: Yes.

Unidentified Justice: It is not terms that the court dreams up.

Mark D. Stern: You are allowed to intervene--

Unidentified Justice: I will put it to you this way.

If this election had already gone on and you went to the Secretary and he goes and makes his case before the court and there is going to be a new election, if the judge had then ordered the election pursuant to... exactly the way he did in this case, he would be violating Title IV, would he not?

Mark D. Stern: --Exactly the way he did in this case?

I do not think so, Your Honor.

Unidentified Justice: I thought the Secretary had a set of rules as to how new elections were to be run.

Mark D. Stern: Yes, but there is no... I do not believe under the--

Unidentified Justice: You mean the court can displace them?

Mark D. Stern: --I do not believe the rules set down in this case are any different from the rules--

Unidentified Justice: Is the court constrained by the regulations the Secretary has issued as to how new elections are to be run?

Mark D. Stern: --Under Title IV?

Unidentified Justice: Yes.

Mark D. Stern: I do not believe the court is, Justice White.

I believe the courts respect them, but I do not believe they are.

Unidentified Justice: The exclusivity means hardly anything there.

Mark D. Stern: It hardly means anything because it is the same court that sets the same terms, and if the union refused to run its own meeting under Title IV the court would have done the same thing that it did here under Title IV.

It would have had somebody else run the meeting.

There would not have been any other choice.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Wilken?

ORAL ARGUMENT OF GARY WITLEN, ESQ., ON BEHALF OF PETITIONERS -- REBUTTAL

Unidentified Justice: What about my last question?

Gary S. Witlen: I would be happy to start with it, Justice White.

The problem with Mr. Stern's analysis at that point is that he misconstrues the statute.

The terms of the election that the Secretary conducts are the terms set by the Secretary.

Unidentified Justice: In published regulations?

Mark D. Stern: In published regulations and after analyzing the union's rules and regulations.

If you look at 402(a)(2)(b)... excuse me, 402(b) of the statute... try once more, 402(a)(2) of the statute provides that the order received by the Secretary is to direct the conduct of an election or hearing and vote upon the removal of officers under the supervision of the Secretary and in accordance with the provisions of this Title and such rules and regulations as the Secretary may proscribe, the first statutory misconstruction that was presented to you.

The second statutory misconstruction is Mr. Stern's statement that the Congress decided that where there was a violation with the statute in connection with an election those officers should be displaced and new officers should be implaced.

Clearly the statute provides in 402(a)(2) that in the interim when an election has been challenged the affairs of the organization shall be conducted by the officers elected and in such other manner as the constitution and bylaws may provide.

Even where the election has been challenged, and remember there is a presumption to the validity of that election, but even where it has been challenged the officers elected most recently take office and run the union.

That did not happen here.

For an entire year we had lame duck officers running the operation.

A moment about the way the union proposed the stipulations so-called.

The union offered to conduct a new election.

Now if as Mr. Stern says there were in fact massive violations here and the union was recalcitrant then this Court cannot accept his further conclusion that unions will also take the two and a half years to litigate to death any suit of the Secretary of Labor because here in fact once those violations became obvious and once the litigation problems became obvious the union here offered to conduct a new election and to grant the plaintiffs exactly the type of remedy they were looking for so long as the District Court modified its temporary restraining order to allow the union to conduct it under its own rules.

The District Court refused to do that.

Thereafter we engaged in seven months worth of negotiation over a preliminary injunction during which in answer to your question, Justice Brennan, the union repeatedly raised the argument as to the District Court's jurisdiction.

There are citations in the briefs.

I would also refer you to Joint Appendix 111 and 112, which is the clearest statement with counsel for the union saying, Your Honor, we don't agree to any of this.

Regardless of who you appoint, we object to your fundamental authority to appoint or to set aside the results and the court saying yes, I understand that, but we appreciate your participation in these discussions.

So it is great misstatement of the record, and in fact the Court of Appeals found that the union did not agree to the terms of the election that the court ordered.

If we accept Mr. Stern's contention that the 1983 election moots this case, then we are left in the anomolous position on the basis of Glass Bottle Blowers that only the Secretary can fully litigate a Title IV complaint and only where he loses at the district court because if the union loses at the district court and then is subsequently caught up in its next regularly scheduled election then that suit may be mooted out by the conduct of that election.

I suggest that is not before the union the due process rights that is inferred.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The honorable Court is now adjourned until tomorrow at 10:00.

Featured:

Delcostello v. Teamsters - Oral Argument

Wed, 18 Feb 2009 07:11:12 +0000

Case:

Delcostello v. Teamsters

Media File:

81-2386_19830425-argument.mp3

Related Transcript:

81-2386_19830425-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF WILLIAM H. ZINMAN, ESQ. ON BEHALF OF PETITIONERS IN NO. 81-2386

Chief Justice Burger: We'll hear arguments next in Costello against the International Teamsters and the consolidated case.

Mr. Zinman, I think you may proceed when you are ready.

Mr. Zinman: Mr. Chief Justice, and may it please the Court.

The issue in this case is should this Court apply the Maryland arbitral statute of 30 days or the six-month statute of limitations contained in 10(b) of the National Labor Relations Act or a longer statute of limitations to this hybrid action.

If, on the other hand, this Court applies the Maryland arbitral statute to this hybrid action, the next issue would be whether or not it should be applied prospectively or retrospectively in this case.

The facts in this case are as follows: Philip Del Costello, the Petitioner in this case, was employed by Anchor Motor Freight, the Respondent, as an over-the-road truck driver at the time of his termination on June 27, 1977.

At that time he was also a dissident member of PROD, a national Teamsters organization and was engaged in a campaign of truck safety several months proceeding his termination.

On that date he was assigned to drive a truck from Baltimore to Canada and during the course of his inspections he found a number of safety defects with respect to the truck.

When the company insisted that he drive the truck he refused, and he was terminated on the spot.

Consistent with the company union contract, he initiated a grievance at that time which was not resolved amicably.

As a result, the grievance took the form of a hearing before a committee consisting of an equal number of employer and union representatives.

I believe this was in July of 1977.

At that time he was represented by his business agent who is his exclusive representative.

He did not have the right to an attorney.

The business agent conducted no investigation into the facts which preceded the termination, nor did the business agent introduce any evidence and particularly it failed to introduce the mechanic who supported Mr. Del Costello's position that the truck was unsafe.

The only evidence that was introduced was through a company supervisor at that time who Mr. Del Costello claimed was not even there.

This was contrary to the conference rules and if that evidence was excluded, of course, the company would not have met its burden of proof.

Mr. Del Costello related to his business agent that this man was not even there.

The business agent failed to object.

As a result of this hearing, the committee upheld the discharge.

Subsequent to that the business agent engaged in a course of conduct which reasonably led Mr. Del Costello to believe that he had yet to exhaust his contract remedies and that the decision was not final until December of 1977.

Several months thereafter, I believe it was in March of 1978, Mr. Del Costello initiated suit in the federal district court for the district of Maryland.

Several months thereafter both Respondents answered the suit.

However, Local 557 never even raised the issue of limitations in its answer.

While Anchor Motor Freight did raise the question of limitations it did not specify which limitation period it had mind.

This was understandable at that time because the Maryland arbitral statute by its own terms is expressly inapplicable to labor disputes.

In any event, for the next 32 months during which time the parties engaged in rather extensive discovery, not one time did Anchor Motor Freight or Local 557 ever raise the question of limitations until they filed their motion for summary judgment in November of 1980, one month after this Court granted certiorari in Mitchell.

We contend that if this Court applies the arbitral limitation statute of 30 days for all intents and purposes the hybrid cause of action is destroyed.

I say that because most of these arbitration statutes were initially passed by the state legislatures to apply to commercial disputes and in commercial disputes from the arbitrator to the courts the parties are usually represented by the same counsel.

And it is a matter of smoothly shifting gears from the arbitrator to the court in terms of the filing of appeal which in that instance only takes hours to possibly one day.

The situation is entirely different with a disconnected party such as Mr. Del Costello or anyone having hybrid cause of action because he does not have an attorney at the grievance procedure.

He is limited, and in this case he was limited exclusively to his representative, his union representative.

Moreover, unlike the arbitral proceeding where there is an established and known record of law and fact, the facts surrounding the malpractice not only are not on the record but the business agent in most instances does everything to hide those facts.

As a consequence, before the worker ever realizes that he has a cause of action, 30 days has already passed and he is out of court.

But that is not the end of it.

Who does he turn when he first realizes that he has been wronged.

He has to go to a lawyer and unfortunately those most able to represent him in this field are either labor lawyers representing management or labor lawyers representing unions and due to the polarization of the labor bar he ultimately finds that he has to turn to a general practitioner such as he did in this case--

Unidentified Justice: Mr. Zinman, when you say polarization, do you mean anything more than just conflicts of interest?

Mr. Zinman: --No, Your Honor, I am simply saying that as a practical matter particularly even in a larger city such as Baltimore lawyers who represent unions and lawyers who represent companies will not take these cases because they view the petitioner as somewhat of a pariah.

In a broad sense I suggest it might well be a self-perceived conflict of interest or rather technical conflict of interest.

In any case when a general practitioner gets this kind of client he has to research a brand new law and that takes time.

After he researches the law and then familiarizes himself not only with that but with the customs and the practices and the contracts and the constitutions and all of the other intricate matters, he then has to decide to conduct a factual investigation to determine frankly whether or not there is a prima facie case.

That takes a considerable period of time.

After all of that is done there is a matter of counsel fees and costs because you must have reasonable cost in this case to meet the well-dealed opponents who have no such problems.

So I submit to the Court that this is probably one of the most important reasons why it is totally unfair to apply such a short statute of limitations of even 30, 60 or 90 days.

In fact to be perfectly candid, I believe that even six months under these very difficult circumstances is not enough.

The unions and companies frequently make the argument if any period of time longer than 30 days is applied it will do violence to the policy of rapid disposition of labor disputes which, of course, was the principle enunciated in the Mitchell case several years ago, and I suggest that this is not correct.

It is not correct for two reasons.

First, in Mitchell this Court only had really two options.

It had the option to select a three or five year statute of limitations on one hand or a 90-day limitation on the other.

It did not, as I read the case, have the option of applying the six-month arbitral limitation period contained in 10(b) as it does here.

But more important than that, I really do not believe that there is an empirical evidence to suggest that there is any danger posed to the notion of rapid disposition or more particularly the law of the shop, based upon the fact that if the statistics in the cert petition of the Steelworkers is any indication that there is any avalanche of cases now pending before the district courts.

They had 110, but assuming that there is 400 cases now pending before the district courts of the United States, how does that pose as a threat to rapid resolution of labor disputes.

Moreover, I will just close... Moreover, most of these cases that are pending involve questions of fact as to whether or not the agent properly investigated the case of whether or not he was guilty of committing an act of malice.

There are very few precedential cases in the whole scope of these cases that are now pending, and given the high degree of proof that is required to prove one of these cases, I doubt very much if there is any particular threat to this policy.

So we submit to the Court that the most appropriate statute of limitations would be 10(b).

In my remaining time I would just submit that the closest analogous limitation period would be 10(b) because 10(b) in breach of duty of fair representation which was contained within the hybrid cause of action was judicially implicated from the National Labor Relations Act.

As such the courts have held on many occasions that a breach of duty of fair representation is also an unfair labor practice as is the conduct of the company in many cases.

But to the extent that it is not I refer the Court to the observation of Justice Stewart that it is sufficiently similar in character so as to be encompassed by the National Labor Relations Act.

Unidentified Justice: Mr. Zinman, to get the benefit of 10(b), however, you still have to have a towing somewhere don't you?

Mr. Zinman: Yes.

In this particular case we do.

Unidentified Justice: So to win you have to have 10(b) plus a towing?

Mr. Zinman: Yes, but we feel, Your Honor, that that is a factual matter to be resolved by the trier of fact.

We filed an affidavit alleging those facts and, of course, neither Respondent answered.

They are asking this Court for the first time to decide facts which is really not before the Court.

We assume that the Court will apply the usual rule of construction of assuming the truth or any truthful instances that arise out of our contentions.

Unidentified Justice: Was this on motion for summary judgment?

Mr. Zinman: Pardon?

Unidentified Justice: Was this on motion for summary judgment?

Mr. Zinman: Yes, sir.

It was on motion for summary judgment, and that is the posture of the case at the present time so that all this Court would do obviously is return the case to the district court on remand if it found in our favor.

Finally, I would just conclude by stating that we feel also that if the Court does decide that the arbitral limitations is applicable that we suggest that it should be held prospectively rather than retrospectively because there was a reasonable reliance and the best evidence of our reasonable reliance is the conduct of the Respondents in not raising this question of limitations for 32 months.

Thank you.

Chief Justice Burger: Mr. Weinberg.

ORAL ARGUMENT OF ROBERT M. WEINBERG, ESQ. ON BEHALF OF THE PETITIONERS IN NO. 81-2408

Mr. Weinberg: Mr. Chief Justice, and may it please the Court:

I am here on behalf of the Petitioner Steelworkers Union in the Flowers case.

I can state the facts of Flowers very simply.

The Plaintiffs in this case, Respondents here, had a grievance over work assignment.

They took their grievance to the union.

The union processed the grievance through all four steps of the grievance process and then took the case to arbitration.

The arbitrator ruled against the union.

Eleven months later this suit was brought.

It is a hybrid section 301 breach duty of fair representation suit against both the company and the union.

Both defendants moved to dismiss on statute of limitations grounds.

After some ups and downs through the courts, the court below dismissed the case against the employer holding that after Mitchell the 90-day New York statute of limitations governing suits to vacate arbitration awards apply.

As to the case against the union, however, the court below ruled that the New York statute of limitations, a three-year statute governing non-medical malpractice actions, governed.

We challenge--

Unidentified Justice: In your case it is just the union that is here--

Mr. Weinberg: --Just the union.

Unidentified Justice: --not the employer.

Mr. Weinberg: That is correct.

We challenge the decision below on two grounds.

First we urge that the six-month period in section 10(b) of the National Labor Relations Act be the statute to govern duty of fair representation suits against unions.

Second, in the alternative if state law governs we would urge that the 90-day New York statute governing suits to vacate arbitration awards be applied in the case against the union as it was in the case against the employer.

Let me take our primary position, the 10(b) issue, first.

The starting point, we believe, is that this duty of fair representation cause of action is a federal cause of action.

It is a creature of a federal statute.

It was implied from section 9 of the National Labor Relations Act, the section that confers exclusive bargaining status upon majority unions.

The question of what statute of limitations governs a federal statute is a federal question to be determined by construing that statute.

Generally, where Congress enacts an express cause of action but does not provide a statute of limitations, it is a fair inference that Congress intended that a state limitations period would apply.

That is so because in the normal case one presumes that Congress intended there be some limitations period and the state law in most cases provides the most likely if not the only source for such a statute.

But we submit that in that case that inference makes no sense.

As both Justice Stevens and Justice Stewart in their respective opinions in Mitchell, the Congress in 1947 when it enacted the NLRA was not aware that this Court would come along later and imply a judicial duty of fair representation cause of action.

In that circumstance, the silence of Congress on the statute of limitations question cannot signify an intent that state law apply.

It cannot signify an intent that any particular statute of limitations apply.

Unidentified Justice: Well, Mr. Weinberg, do you think the silence of the Congress in the many other kinds of federal causes of action where state statutes have been implied was taken to mean that state law was intended by Congress?

That was really the only place to turn.

Mr. Weinberg: I think it is both of those.

Well, what happened is I think you had... In the outset I think the question was what is the statute of limitations and the only place to turn was state law.

Over time I think you had that factor combined with the factor that this Court had been consistently saying state statutes of limitations should govern and, therefore, when Congress did not put a statute in there that added weight to that inference.

But you cannot have an inference if Congress was not aware at the time it was creating the cause of action.

That is the circumstance we find ourselves in here, and it seems to us that in that circumstance what you have got to do is you have got to go back to the Act and look at the structure and policy of the Act, the Act that gives rise to the cause of action.

It is our view that when you do that here you get substantial guidance on this question because in section 10(b) of that very Act Congress expressly adopted a limitations period that strikes a balance between the very same complex of employee, employer, and union rights that is involved in the judicial duty of fair representation action.

As this Court found in Machinists, 10(b) reflects Congress' judgment as to the proper balance between the interests of employees and the overriding interest of the Act and industrial peace.

In the Court's word the objective of 10(b) was stability of bargaining relationships.

That very same tension exists in the duty of fair representation context, the tension between individual rights and the functioning of the private system of decision making that the NLRA was intended to foster.

As this Court recognized in Mitchell, the grievance arbitration process is a critical part of that private decision making system.

Unlike in the commercial context where arbitration is a substitute for litigation, in the labor context arbitration serves as a continuing process by which the law of the shop is developed.

The duty of fair representation action is a challenge to a decision arrived at through that process, a decision that the parties to that process, the union and the employer, are perfectly prepared to live by.

The thrust of duty of fair representation action is that that system of decision making malfunctions.

As long as the duty of fair representation suit may be brought, the parties cannot regard the matter as finally settled, and they cannot rely on it in their future dealings with one another.

The Court expressed this point in Mitchell and if I may quote from the Court's opinion,

"This system with its heavy emphasis on grievance, arbitration and the law of the shop could easily become unworkable if a decision which is given meaning and content to the terms of an agreement that even effected subsequent modifications of the agreement could certainly be called into question as much as six years later. "

The Court went on to point to the

"undesirability of the results of the grievance and arbitral process being suspended in limbo for long periods. "

The six-month period in 10(b) was intended to provide a definitive end to just such situations of uncertainty.

It is our view in sum as to the 10(b) issue that the duty of fair representation is an intrical part of the complex of employee, union, and employer rights embodied in the national labor policy.

Unidentified Justice: So you would think 10(b) should govern not only against the union but against the employer?

Mr. Weinberg: We do, Your Honor.

We don't think necessarily that 10(b) applies against the union necessarily compels that answer but we do believe that is the correct answer.

We do so for the following reason.

The reason we say it is a different question is you have got to get at it... You obviously do not have an action arising under the National Labor Relations Act against the employer.

You have got a 301 action and you have got in 301 a provision where Congress enacted a cause of action and did not expressly enact a statute of limitations.

However, we believe that the Hoosier Cardinal decision provides ample reason and justification for saying that in the case against the employer as well as the case against the union these consensual processes of private decision making are implicated.

The Court in Hoosier seems to have left room for saying that when a 301 cause of action does possibly threaten those processes that some other source in state law might be looked to.

In this case we think 10(b) in that context also.

Unidentified Justice: Of course, your opposition thinks that Hoosier is authority for just the opposite.

Mr. Weinberg: There is no question that Hoosier is authority for the proposition... It seems to me you got hysteric when you got a 301 action with Hoosier.

With respect to the case against the union, we do not consider that a 301 action.

At the very least the cause of action is implied not from 301 but from section 9 of the NLRA.

Unidentified Justice: What do you think the action was in Humphrey?

Mr. Weinberg: Well, Humphrey cited Tunstall which said the action... Excuse me in Humphrey--

Unidentified Justice: Did you not say Humphrey said was a 301?

Mr. Weinberg: --No, excuse me.

I was mixing up.

The action was--

Unidentified Justice: The employer was in that case?

Mr. Weinberg: --Yes.

The cause of action against the union was derived where it has always been derived from and that is the National Labor Relations Act.

I believe the Court was saying in Humphrey that the claim... that there was a breach of contract in that case.

In fact, it was a claim that both the employer and the union had breached the contract.

Unidentified Justice: The employer was a party?

Mr. Weinberg: Was a 301 claim.

I do not think it was saying that the duty of fair representation claim was a 301 claim, certainly not that it was derived from 301 as opposed to the National Labor Relations Act.

In sum, on the 10(b) we think the balance struck by Congress in 1947 in enacting 10(b) is the one that best effectuates Congress' intent here when dealing with the conflicts of interest not the varying laws of 50 states, none of which was devised with this particular set of interest in mind.

If the Court please, I will reserve the rest of my time.

Chief Justice Burger: Mr. Goldfarb.

ORAL ARGUMENT OF BERNARD S. GOLDFARB, ESQ. ON BEHALF OF THE RESPONDENT IN NO. 81-2386

Mr. Goldfarb: Mr. Chief Justice, and may it please the Court:

If we were discussing this problem in an academic nature, the 10(b) feature might be a valid discussion, but we are discussing it in a legal nature on appeal from a district court to a court of appeals and we are here on legal questions.

We cannot waive out of existence the fact that we are governed by Hoosier Cardinal, that we are governed by Mitchell and that we are governed by the Rules of Decision Act.

The Rules of Decision Act compel us to go to state law, the most analogous arbitration statute and if we do that that then becomes federal law.

It does not erase the federal question.

The Rules of Decision Act require the courts by virtue of an act of Court to go to state law and find what may be required or provided in civil actions in state law and apply it to the federal cause of action in a federal court.

Ten (b) is an administrative provision in the National Labor Act that begins the procedure for the National Labor Relations Board.

You are beginning a process with 10(b) whereas with the arbitration that we are talking about here we are concluding a process under a labor contract between a union and an employer.

If we were to compare this on a same parallel track, we would have to regard the beginning of the grievance with the beginning of the initiation of a problem with the National Labor Relations Board and run those two parallel to the time of the arbitration hearing to the time of a hearing before an administrative law judge with the Labor Board and then determine what time elements apply from those two equal hearings.

In other words, you cannot reach over and take 10(b) that begins a process and apply that to an arbitration wherein a process is ended.

As a matter of fact, if you want to be analogous to the National Labor Relations Board in an appeal from an administrative law judge to the full Board, they only give you 20 days.

We cannot agree with the statement of facts made by counsel for Del Costello.

I am not going to belabor them here because they are set out in detail in the briefs, but I want to point one thing out to this Court and that is that the arbitration statute in Maryland is exempted from applying to labor management contracts specifically by Maryland Rule of Practice E2 wherein it is provided in any such case the provisions of the Maryland Arbitration Act concerning such proceedings shall be applicable.

In there they refer to court proceedings.

The courts specifically refer that the Arbitration Act will apply.

The employer does not get his rights from the implied provisions of the National Labor Relations Act.

If you want to imply anything and if you imply that the conduct of arbitrary or unreasonable union conduct towards an employee is implied from the Act, you have to weigh that against what the Act specifically says.

The employer is not part of that implication, but the employer is inextricably interdependent with the union when these cases come before the district court.

They are like love and marriage.

They go hand in hand.

It is probably the only time that they have anything in common and that is to preserve the arbitral process in the labor agreement.

If there is any unfair representation, that representation would occur either before or during the arbitral hearing.

If there is an appeal to a district court, it is an appeal from that arbitration that we are talking about.

The union's conduct is not indepedent of the employer, and it can't be predicated upon an indepedent action.

It is all in one lawsuit.

As a result, one statute of limitations ought to apply to the two of them.

Then they raise the question of whether it is prospective only or prospective and retrospective.

All law is prospective and retrospective unless this Court says otherwise.

In Northern Pipeline it saw fit to make the law prospective because of the havoc that would be created in the event the law was retrospective.

But in Mitchell it did not see any need for that.

It said nothing about the law being prospective only, and as a result, it is also applied retrospectively unless the Chevron criteria applied, a clean break with the past, no foreshadowing of what is to come.

Nobody can claim there was not any foreshadowing in Mitchell after reading Hines plus a multiple of lower court decisions that existed long before Hines that applied a local arbitration statute.

This business about not being able to get a lawyer or that the lawyers are polarized in Baltimore, none of this is a matter of record.

None of it appears in this case.

These are subjective things that courts cannot concern themselves with.

We have to concern ourselves with the reality of the situation and what the law consists of.

The law says you must refer to the appropriate analogous state statute and if you have one that provides for a limitation on arbitrations and arbitration is what we are dealing with, then you must invoke that statute.

If you invoke that statute in order to be completely fair and to conclude this arbitral process somewhere along the line you must apply it equal to the employer and to the union.

Chief Justice Burger: Mr. Groner.

ORAL ARGUMENT OF ISAAC N. GRONER, ESQ. ON BEHALF OF THE RESPONDENTS IN NO. 81-2408

Mr. Groner: Mr. Chief Justice, and may it please the Court:

Respondents Flower and Jones are before the Court to request affirmance of the judgment below which held that the appropriate statute of limitations was that applicable to non-medical malpractice.

That judgment should be affirmed essentially for two reasons.

One, the substance and purpose of the duty of fair representation clearly makes the most analogous state statute of limitations that applicable to legal malpractice, and secondly, that the decisions of this Court and the law that has been established with respect to statutes of limitations would require that the statute of limitation to be applied in a duty of fair representation case against the union be the most analogous state statute of limitations.

With respect to the substance and purpose of the duty of fair representation from the beginning of its statement in the Steel case throughout every discussion of it, that duty has consisted of a correlative duty which arises from the right of the union to represent all of the employees in the bargaining unit, and the correlative duty is to represent each and all of the employees without discrimination, to represent them fairly.

In the Steel case the analogy was made to a legislature.

It was held that the right to represent all the employees in the bargaining unit was analogous to the right of the legislature to pass laws which were applicable to all the citizens and that if there were no duty that that right be exercised in a fair way, constitutional questions might even arise so that we are concerned in the duty of fair representation with questions of fair treatment that may rise to the stature of constitutional questions.

What we have and what the Court has repeatedly held is that the supreme and basic value in a duty of fair representation is protection for the individual.

It is to ensure that the individual employee will not be the victim of unfair treatment, that the duty of fair representation was not only established in the first place, but has consistently been recognized and enforced by this Court.

It is a representational duty.

In speaking of representational duties and in asking what is the appropriate analogy to a representational duty we would suggest that the immediate answer that occurs is that of the relationship between an attorney and a client.

Unidentified Justice: Mr. Groner, how well off is an employee in New York, say, where this case arose going to be if the statute of limitations against the employer is 30 days and the statute of limitations against the union is two years.

Is generally the action against the union worth pursuing even if the statute has run against the employer?

Mr. Groner: The statute for the arbitration would be 90 days in New York, but the answer is yes, Your Honor.

Presumably we would be concerned with cases where no action was brought within the 90 days so that we have a situation... As a practical matter, we may have a situation where to enforce the same statute of limitations against the union as has been enforced against the employer would be to deprive that individual employee of any opportunity to gain redress from what he will have to prove has been an arbitrary action by his union and represent him in the arbitration case.

Unidentified Justice: So he is going to have to prove his cause of action against the union he is going to have to prove there was a breach of contract, I suppose, by the employer.

Mr. Groner: He would have to prove that there was a breach of contract by the employer.

In other words, just as in a legal malpractice action, you have two elements of the cause of action.

One, you must prove misconduct by the attorney.

Secondly, you must to prove damages in effect you must prove that the misconduct by the attorney altered the result.

That is to say you would have won the case but for the misconduct of the attorney.

Similarly in the case against the union, you must prove not only the misconduct but that the misconduct in effect made a difference.

That is to say that barring the misconduct--

Unidentified Justice: I am not sure if there was not a breach of conduct by the employer there may not have been any breach by the union at all.

Mr. Groner: --The breach by the union in terms of presenting the employee's grievance--

Unidentified Justice: The union just did not underrepresent him if there was no breach at all.

Mr. Groner: --The question is did the underrepresentation make it possible that there be a conclusion that there was no breach and in the action against the union the employee plaintiff would prove as the plaintiff's allege in this case that had the case been investigated and presented within the duty of fair representation, the arbitration award would have been.

But there had been a violation of the contract, the kind of holding that Your Honors just a few months ago in the Bowen case pointed out that the decision there where the case was not taken to the jury the assessment of damages against the union was predicated upon the proposition that had the union taken the case to arbitration there would have been proof that the employer breached the agreement in that case.

In that case it was an unfair discharge.

In this case it is a question of a job assignment and ultimately lay off and termination.

So that the very point of the duty of unfair practice responsibility and action is to demonstrate that with proper representation by the union the plaintiff's grievance would have been vindicated.

It would have been carried forward successfully.

Where it has been carried to arbitration that the award would have favored the union.

This analogy of having to prove that you would have won had there been proper conduct is not the only point of similarity between the attorney-client relationship and the employee-union relationship.

The essence of the duty of fair representation is precisely that the individual is in a uniquely vulnerable position.

He is being represented by someone who has a special status under the law, in the attorney case by state law, in the federal case by section 9(a) or by analogous provisions of the Labor Act.

Unidentified Justice: Well, Mr. Groner, I am not sure you answered Justice Rehnquist.

I probably interrupted before you could, but what damages could you get against the union in New York now if the action against the employer is barred?

Mr. Groner: We would get the damages--

Unidentified Justice: Could you collect from the union all the damages that you might have collected against the employer if the action against the employer was not barred?

Mr. Groner: --There might be questions of apportionment that would arise, but essentially, yes.

Unidentified Justice: But the employer is out of the case entirely.

Mr. Groner: Essentially, yes.

You would be able to recover from the union the damages that flowed from the fact that it did not--

Unidentified Justice: What would that be, though?

What would that be because the case did go to arbitration and there has not been any... The union's breach has not delayed resolution of the case by arbitration.

The arbitration decision has been had.

Now what damages could you get against the union.

What would be the allocation if you won against the union?

Mr. Groner: --The damages that flow from the fact in our view that the arbitration decision was incorrect--

Unidentified Justice: Yes.

Mr. Groner: --and, therefore, the damages that would flow would be the damages that would follow had the award--

Unidentified Justice: What would be those damages?

Mr. Groner: --The damages would be the back pay--

Unidentified Justice: You cannot get it from the employer.

Mr. Groner: --In the duty of fair representation case you would get that from the union in the same sense that Bowen held that it could recover from the union.

Unidentified Justice: Because the employer is out of the case at the end of 90 days, you think everything you could have collected from the employer could now be collected from the union under the existing cases?

Mr. Groner: I am not... The answer is yes but--

Unidentified Justice: You could get all of the back pay from the union?

Mr. Groner: --While I answer yes, I submit to Your Honors that that is not an essential answer to the issue that is before this Court.

The issue before this Court is what should be the statute of limitations for an action against the union whether the action against the union should also be barred in the 90-day period that Mitchell held that in New York it should be barred as against the employer.

The statute of limitations should not be the same, Your Honor, because the elements of the claim against the union, the relief requested against the union are not the same.

Unidentified Justice: Do you think the Rules of Decision Act preclude application of 10(b)?

Mr. Groner: I do not think that this Court is precluded from adopting any statute--

Unidentified Justice: Why not?

The suggestion has been made that the statute forbids, the Rules of Decision Act forbids our resort to 10(b).

Mr. Groner: --There is nothing in my view that would preclude this Court from interpreting that statute or any other in some other way.

I would urge Your Honors that while you have the power that the power ought to be exercised in accordance with the law and justice, and I would urge Your Honors that the consistent interpretation of the Rules of Decision Act has precisely been that in terms of statutes of limitations when there are federal rights and it comes to deciding what statute of limitations should be employed to the enforcement of that right that the appropriate state statute should be applied.

Unidentified Justice: Well, then the... Any reservation in Mitchell was beside the point.

Reserving the question about 10(b) should not have been reserved at all.

It has already been... Under your view the Rules of Decision Act would give only one answer to that question that was left open, namely that 10(b) is not available at all.

Mr. Groner: Precisely, Your Honor, yes indeed, and not only the Rules in Decision Act but every decision of this Court including Mitchell which itself applied a state statute centering on Hoosier which in its text did discuss whether or not Congress intended that the 10(b) statute of limitations should be applied.

For those reasons, the decision should be that the most analogous state statute should be applied and in the case against the union the most analogous state statute in our view is that which is directed to legal malpractice.

To hold that 10(b) should apply, Your Honors, would be to make a judgment that is contrary to every pertinent decision of this Court and is also contrary to the purpose and the function of the duty of fair representation.

The duty of fair representation is not implied alone or even in principle measure in our view from section 9(a).

Section 9(a) is what creates the right in the union to represent all the employees in the bargaining unit, but it does not state what correlative duty flows from that right.

That correlative duty is based upon basic notions of justice embedded in the common law as to all kinds of representational relationships.

It is a principle of justice that goes beyond attorney-client or employee-union, that those who take upon themselves the task of representing others must perform that task with due regard for the rights of others and above all they must not prejudice the rights of others.

They must realize that they are in a position of greater knowledge.

They must realize that they are in a position of higher responsibility.

They must realize the utter dependence under the circumstances that those they are representing are looking to them for.

They are in a sense helpless in the situation.

The individuals do not have the knowledge.

They do not have the experience.

They do not have the training.

What is involved here is a special representational relationship and justice as embedded in historic notions of fairness in the law says that the representative must be held accountable and that that duty to be held accountable to the individual is correlative.

It is as extensive as the right to represent all of the employees in the bargaining unit.

In Hoosier in the Hoosier Cardinal case the Court was confronted by a statute of limitations problem.

Now, the precise issue in the Hoosier Cardinal case was one of a suit by a union to enforce a collective bargaining contract.

We submit that the rationale of that case is directly applicable to the issue of 10(b) for the Court said we are urged judicially to invent a statute of limitations.

But the Court said when the Congress came to establishing an unfair labor practice and creating and defining an administrative procedure for that unfair labor practice it defined a statute of limitations of six months, but when it came to section 301 it did not establish a statute of limitations.

That contrast this Court explained in Hoosier, that contrast meant that when an action is based upon section 301 the appropriate state statute of limitations should be applied.

This Court held that it was a matter of congressional intention and that it was demonstrated by the contrast between the lack of statute in 301 and the presence of a definite statute of limitations in the National Labor Relations Act that Congress did not mean for that to be applied in the other.

Rather Congress intended that the state statute of limitations should apply.

Congress as we point out in our brief put in different titles, different subchapters of the United States Code when it was codified.

The National Labor Relations Act and the section 301 and the six-month statute of limitations had not been applied to section 302 statutes, section 303 claims, nor has it been applied to causes of action which Congress created in further defining the national labor policy of the United States creating causes of action that are very close to in ultimate purpose of protecting the individuals to the duty of fair representation.

When it passed the Labor Management Relations Act in 1959 and when in 1970 it passed the Postal Reform Act, it established rights upon which it imposed no statutes of limitations.

This Court has many times pointed out the difference between the public responsibilities of the National Labor Relations Board and the private interest of individual plaintiffs in these duties of fair representation action.

This Court has held that the paramount value in terms of duty of fair representation is protection of the rights of individual employees.

A distinction has been drawn between the responsibilities to serve the public purposes and the right of the individual to bring a law suit according to the traditional law to have available to him as Steel said traditional forms of legal redress.

This Court has held that even claims of insubstantial values ought to be protected because it was such a paramount purpose that individuals should be protected from abuse from unfair treatment by their exclusive bargaining representative.

Now, in Hoosier you could have said that the cause of action was likewise based upon the National Labor Relations Act because how did the union get the opportunity and get the right to speak for all of the employees and to bring that action to enforce the contract.

It got it by virtue of its status under section 9(a), the right to represent all employees and sign the contract, and it got the right to bring that action under section 301 which under the decisions of this Court, of course, endowed courts with substantive rights, the right to declare substantive law and is not merely a procedural statute.

Likewise here the claim is a claim that is based upon long standing legal principles of individuals not to be unfairly treated by their representatives, and that right not to be represented by the individuals is not a right that is derived from section 9(a).

It is a right of substantive law that is part of the 301 grant of power by Congress and part of the rights that ought to be taken into account in determining the appropriate statute of limitations.

There has been some talk about the party's ability to rely on the decision here, and the rule of the law of the shop.

If these parties wanted to rely on the arbitrator's award as much as they imply to this Court that they do, they could obviously have written the substance of the award into their contract.

We believe that the judgment below should be affirmed.

Thank you, Your Honors.

Chief Justice Burger: Mr. Weinberg, you have five minutes remaining.

ORAL ARGUMENT OF ROBERT M. WEINBERG, ESQ. ON BEHALF OF THE PETITIONERS IN NO. 81-2408 -- REBUTTAL

Mr. Weinberg: Thank you, Your Honor.

I do not think I am going to take that much.

I just have two quick points.

First, Hoosier was a straight breach of contract action under section 301.

It was not an action derived from the National Labor Relations Act as this one is.

I do not think in the circumstances of this case that it is fair to say that what we are asking for is judicial inventiveness and that what the other side is asking for is something other than that.

What we are saying is when you look at this statute and you look at the complex of interest involved, Congress adopted a statute of limitations to apply to that complex of interest.

It is not judicial inventiveness to say let's apply that statute rather than the statutes of 50 states all of which are different none of which was devised to apply to this set of interest.

Let me make one point--

Unidentified Justice: I take it you are saying that we are not permitted by the statute to look to state law in this situation?

Mr. Weinberg: --Well, permitted would be a very strong word, Justice White.

Unidentified Justice: I think that is the bottom line of your argument.

Mr. Weinberg: If we properly understand--

Unidentified Justice: If Congress provided a statute of limitations for the complex of interest--

Mr. Weinberg: --No, we are not saying, I want to be very clear on this, that Congress expressly provided this statute of limitations for this kind of law suit because as I indicated at the outset we--

Unidentified Justice: --Just by analogy then.

Mr. Weinberg: --Okay.

What we are saying is that looking at the statute and the statute of limitations that was adopted we think that what Congress was trying to achieve there is what it would have tried to achieve here.

The same complex of interest is involved.

Let me make one point on the state law issue where it is our position that if we get to the issue, the arbitration statute should apply.

The Court in Mitchell said the malpractice analogy was inappropriate in that case because the arbitrator's award stood between the plaintiffs and the remedy they sought.

That is true as well in the case of the union.

As counsel for Respondents indicated, they have to prove that there was a breach of contract and the remedy they seek, a remedy under Bowen, is a remedy of back wages which flows from a breach of contract.

Just as in the case against the employer, it is necessary here if they want to make out their claim to prove that the contract was breached which means you have got to show that the arbitrator's decision was erroneous.

Thank you, Your Honor.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Unidentified Justice: The Honorable Court is now adjourned until tomorrow at 10:00.

Attribution:

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Featured:

Bowen v. United States Postal Service - Oral Argument

Wed, 18 Feb 2009 07:11:13 +0000

Case:

Bowen v. United States Postal Service

Media File:

81-525_19821006-argument.mp3

Related Transcript:

81-525_19821006-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF WILLIAM B. POFF, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Burger: We will hear arguments next in Bowen against United States Postal Service et al.--

Mr. Poff, I think you may proceed whenever you are ready.

Mr. Poff: Mr. Chief Justice, and may it please the Court, the Petitioner in this case urges this Court to hold that the American Postal Workers Union, which has been adjudicated in this case to have violated its duty of fair representation to the appellant, in fact in this case held to have done so maliciously, recklessly, and in callous disregard of his rights, be held responsible to Bowen for that portion of his increased wage loss which occurred while he was seeking the redress in the courts which the union has been found to have been responsible for seeking for him through the process of arbitration.

This case presents the Court with all the parties and with the necessary evidential underpinnning with which to refine the apportionment of damage test or principles which this Court has enunciated in a long line of cases beginning with Vaca versus Sipes, extending down to Czosek versus O'Mara, and to Hines versus Anchor Motor Freight, and at least by passing reference in two cases last year, the Clayton case and the Mitchell case, both being Section 301 cases.

We think that this Court has been consistent, although it has not met this issue squarely, in holding that the apportionment of responsibility in these cases between the employer and the union should be predicated upon relative fault.

The Court in Vaca and I think the Court in subsequent decisions has indicated that the union should not be responsible for those damages that have been caused by the employer, nor should the employer be held responsible for those damages caused by the union.

The closest decision that this Court has had to the case immediately before you is the Hines versus Anchor Motor Freight case.

There, the Court did not have to meet this issue head on, although it was clear that it was going to have to be met on remand, and you will recall that Justice Stewart in a concurring opinion which was not dissented from by any member of the Court, expressed his belief that the apportionment of loss of wages in that case should be made on the basis of fault, and that the employer who had achieved a successful arbitration award in that case should not be held responsible for any damages that had accrued subsequent to the arbitration award and prior to the time that there would be a determination of... an untainted determination of the employee's rights and his determination that he should return to work.

Unidentified Justice: Mr. Poff, you referred to Justice Stewart's concurring opinion and commented that no one dissented from it.

Do you ordinarily think you find dissents from concurring opinions?

Mr. Poff: I would assume not, sir, though I would not think it unusual perhaps to find--

Unidentified Justice: I don't ask you to predict the vagaries of the Court, sir.

0 [Generallaughter.]

Mr. Poff: --I would not think you reticent to do so if you saw fit, but in this instance, at least, I think it is fair to comment at least that that statement was made by Justice Stewart, and I have seen nothing to indicate disagreement with it.

I would suggest that the fact that you do have the National Labor Relations Board in this kind of setting, in unfair labor practice cases, 8B cases, assessing back wage responsibility against unions indicates that there is certainly nothing anathema as far as national labor policy is concerned against assessing back wages in these kinds of situations where unions have failed to represent employees fairly.

There is nothing wrong with the national labor policy in assessing back wages, because in fact Section 10(c) of the National Labor Relations Act expressly authorizes the National Labor Relations Board to remedy cases, discrimination cases in that fashion.

In order to adopt the position that the APWU asserts in this case would, we suggest, emasculate the very purpose of the duty of fair representation.

There are in these cases, we suggest, only about three elements of damages that can ever be assessed against a union for a breach of its duty of fair representation.

One would be the possibility of back pay.

A second would be attorneys' fees.

A third would be court costs and related items of damage.

If the union is successful in the position in this case that it is in no event liable for back pay responsibility, that only leaves attorneys' fees and court costs.

Attorneys' fees, as was suggested no later than last term with the Summit Valley Industries case, a secondary boycott case in which this Court refused to impose attorneys' fees against unions, and reiterated the American rule, it is unlikely that you will ever have or that you will often have a situation such as this, where you do have a bad faith finding below which would justify the imposition of even attorneys' fees against unions, and unless this Court is going to carve out an exception or unfair representation cases in the attorneys' fee area, another exception to the American rule, then attorneys' fees themselves would not in cases... in most cases of unfair representation be an element of damage.

That would leave only a court cost type of figure, which in the present case might be indicative of what you could expect in other cases, $1,463 divided jointly, so a liability would be imposed upon the union which would be miniscule, which would in fact be less than the cost that they would incur to have processed the grievance properly to begin with.

So, we suggest that to accept the position of the American Postal Workers Union in this case is to render the duty of fair representation, a duty without any sanctions to enforce it, because--

Unidentified Justice: Mr. Poff, don't you think that if there is any requirement of egregiousness in order to find that a union has breached the duty of fair representation, that many of those will be accompanied by a finding of malice or bad faith?

I mean, negligence, I would think, wouldn't be sufficient to support a finding of liability against the union.

Mr. Poff: --You will recall, sir, that in Vaca and Sipes, two tests are really stated.

There is the arbitrary and perfunctory standard referred to on one occasion and the arbitrary bad faith and discriminatory language in another.

I think it has generally been accepted that the appropriate rule is arbitrary bad faith or discriminatory conduct by unions to constitute unfair representation.

Certainly, if there is... there have been cases, however, which have gone off on essentially a negligence standard, relying upon the Court's arbitrary and perfunctory language, and I would suggest that in those cases, that would not be a necessary finding of fault on the part of the union to justify the imposition of attorneys' fees.

And therefore, if the result urged in this case by the appellee is successful, then the duty of fair representation which was judicially created to achieve some balance and responsibility in this area will be rendered of no effect.

There is also, of course, the national labor policy which is well recognized in support of the arbitral process, and we would submit that the... that employers in this context submit to an arbitration agreement with the thought that they will act as they deem appropriate under the facts of an individual case, that the union will, if it deems it necessary, grieve, and that this matter will then ultimately be settled by arbitration within a relatively and... a time frame that can be relatively... be ascertained and predicted with some degree of certainty.

If, as in this case, the union can by failing to take a case to arbitration expand indefinitely the period of lost wage exposure that an employer has, then the employer's intentions in entering into this collective bargaining agreement with a grievance and arbitration process will have been thwarted.

He did not in essence bargain for an indefinite expansion of his liability, which brings us specifically to the facts of this case, which are unusual in the many district court, circuit court cases that have developed since Vaca versus Sipes.

This case does come to the Court with sound underpinning as to when an arbitration award would have been rendered that would have returned this employee to his employment, and the trial court below made the specific finding that the employer should bear the back wage responsibility, some $17,000, from the time of termination until the time that an arbitration award would have returned him to his employment, and that subsequent to that time, until there was a judicial holding or until there was a jury finding that he should be returned to work, this period of time having occurred, and this loss of wage having occurred because of the union's reckless, as the jury found, malicious, callous disregard of Bowen's rights to take his case to arbitration, that that period of time was the union's responsibility, and some $30,000 in wages were assessed against the APWU on that basis.

We think--

Unidentified Justice: This was an advisory jury, wasn't it?

Mr. Poff: --As to the Postal Service, Your Honor, it was an advisory jury.

As to the union, it was not.

It sat in a dual capacity because of the governmental character of the Postal Service.

And we think that the APWU and unions of like position should not be able to expand an employer's liability for back pay indefinitely by breaching this duty of fair representation.

The appellee attempts to structure an argument in this case predicated upon a pure breach of contract analogy going back to the Smith and Evening News cases.

Unidentified Justice: Mr. Poff, do you really care about the employer's expended liability so long as your client gets paid off?

Mr. Poff: I suppose that at root we do not, Your Honor, despite our interest perhaps in the law in this area.

However, we are, as you know, confronted with a Fourth Circuit holding that because we did not note cross appeal from the verdict below, which we deem to be totally favorable, and did not see any need to cross appeal from, because of that and because of a footnote that was added to this decision some four months after the initial decision was rendered in our favor, we did not think we would be here in this posture.

The footnote brought us here because it took away the $30,000 of the Postal Workers Union's damages that would otherwise have been paid by the Postal Service by saying they would not disturb the trial court's apportionment of some $22,964.12 to the Postal Service because we had not noted an appeal as to that.

So, for that reason, it is a matter of some considerable concern to us.

Unidentified Justice: This is your alternative argument.

Mr. Poff: It is... yes.

Unidentified Justice: It may be your stronger one.

I don't know.

Mr. Poff: Well, sir, I think that our point with regard to the actions of the Fourth Circuit in belatedly amending its decision to take $30,000 away from us is one that has been adequately briefed, and I do not desire to discuss that at any great length with the Court.

We do, however, certainly take the position that if the APWU is excused from paying any share of lost wages suffered by Bowen, that he does remain entitled to a full compensatory award from the Postal Service.

The Smith versus Evening News analysis which the union engages in apparently in an effort to reach the result that no back wages should be awarded against the union in any unfair representation case except one perhaps where they conspire initially with the employer, it seems to us inapposite because, first of all, Smith was not an unfair representation case.

It did not involve a case with a grievance and arbitration procedure, and as this Court suggested last term in United Parcel Service versus Mitchell, in which you held... we are dealing with a statute of limitations question with a Section 301 case.

You in language in that case point out that it is not appropriate to analyze this kind of case on a pure breach of contract theory, because once you get the tripartite hybrid procedure of employer, employee, and union, in a Section 301 setting, with the threshold question being whether there has been a breach of the duty of fair representation by the union, that it is not a true breach of contract case any longer, that it is a, I believe, in the words of this Court, a creature of labor law, and so we think that for these reasons, that the rationale of the APWU in its brief is fallacious and flawed.

I would like, if Your Honors please, to reserve the remainder of my time for rebuttal purposes.

Chief Justice Burger: Very well.

Ms. Etkind?

ORAL ARGUMENT OF BARBARA E. ETKIND, ESQ., ON BEHALF OF THE FEDERAL RESPONDENT SUPPORTING PETITIONER

Mr. Etkind: Thank you, Mr. Chief Justice, and may it please the Court, the right of an employer to rely on the union to bring any breach by it to its attention within the context of the grievance process so that the employer can rectify its wrong and prevent the accrual of additional damages is inherent in the collective bargaining system.

As this Court frequently has recognized, a collective bargaining agreement that contains a grievance arbitration provision is far more than an ordinary contract.

The grievance process itself defines the rights under the collective bargaining agreement.

It is the vehicle by which meaning and content are given to that agreement.

Indeed, the Court has described the grievance procedure as part of the ongoing collective bargaining process between the union and the employer.

Accordingly, an act that may be an apparent violation of the contractual provisions is not a breach of them until it is determined to be such within the context of the grievance machinery.

If it is at that point liability will be assessed to the breaching party who took the action that it did with the full knowledge that its conduct might subsequently in the grievance process be found to constitute a breach.

Unidentified Justice: Well, Ms. Etkind, do I gather from your statement that the government views the kind of liability that an employer and a union would incur in this situation as more or less a kind of joint liability for pretty much the same act?

Mr. Etkind: No.

No, indeed.

The employer would be liable for breach of the collective bargaining agreement, while the union is going to be liable for the breach of the duty of fair representation.

Our argument is that at the point at which the... if the union had not breached its duty, and the employer would have been reinstated, at that point his damages would cease accruing, so that if they continued to accrue--

Unidentified Justice: Well, why should that be?

Supposing that I am employed by the United States, and I think the United States has fired me wrongly, and I hire a lawyer, and the lawyer eventually tries to get me reinstated but doesn't succeed, and then I go to another lawyer, and that lawyer succeeds in getting me reinstated three or four years later.

Now, certainly the employer is liable all during that period.

Now, I may have a claim against the first lawyer, but it is only for malpractice.

He isn't obligated to pay me part of my wages.

Mr. Etkind: --But the union is in a very different position than the attorney.

Unidentified Justice: Well, why?

Mr. Etkind: Because the union is part... there is a tripartite relationship among the union and the employer and the employee, and the union itself owes a duty to prevent the continuation of this wrong.

It is because the union and the employer are parties to the contract.

They are the only parties to the contract.

They are the ones that define what the contract means.

So that if the union, because of its breach, because of its breach of the duty of fair representation, is in effect saying there is no breach of this agreement, then the employer is entitled to rely on that, and to go on from there.

Unidentified Justice: Your suggestion is that the union owes a duty to the employer?

Mr. Etkind: No, no--

Unidentified Justice: Well, it sounds like it.

The union owes a duty to the employer to utilize the grievance and arbitration procedure so that the employer's liability won't continue.

Mr. Etkind: --It is... it isn't--

Unidentified Justice: If the employer is at fault.

Mr. Etkind: --It is first and foremost a duty to the employee to represent him fairly, and really the question in this case is what damages can the employee collect from the union for its breach of the duty to represent.

Unidentified Justice: It would be logical in your submission, I take it, that the employer, if it was held liable for all the back wages, would have a claim over against the union.

Mr. Etkind: As to those damages that accrue subsequent to what I have been calling the hypothetical reinstatement date?

Unidentified Justice: Yes.

Mr. Etkind: Yes, that's right.

Unidentified Justice: Why should the employee not be able to have a judgment against the employer for the entire amount?

Mr. Etkind: Because in our view once the decision is made in the grievance--

Unidentified Justice: Well, let the union and the employer fight it out.

Mr. Etkind: --But the employer really should not be subject to that sort of fighting, because it is acting in accordance with the collective bargaining agreement.

Once either it has gotten an arbitral decision in its favor or the time for--

Unidentified Justice: So you think the union does owe a duty to the employer?

Mr. Etkind: --To the employer in the sense of cutting off its liability.

Unidentified Justice: A duty that means that such a duty that the union has to pick up the back wages for a period of time.

Mr. Etkind: Well, that's right.

I might have misunderstood you.

I don't mean a duty arising out of the collective bargaining agreement as much as a duty--

Unidentified Justice: Just a duty to pay.

Mr. Etkind: --That's what it is going to have to do, we believe.

As Justice Stewart stated in his concurring opinion in Hines--

Unidentified Justice: Before you leave that, the allocation was based on the fact that there was a shared fault here, was it not?

That the union's conduct had enlarged the total injury.

Mr. Etkind: --Oh, exactly.

Yes, that's completely true.

Unidentified Justice: Is that not the case?

Mr. Etkind: I'm sorry?

Unidentified Justice: Is there any question about that?

Mr. Etkind: No, no question about that at all.

In his concurring opinion in Hines, Justice--

Unidentified Justice: But the employer remains liable.

Mr. Etkind: --I'm sorry?

Unidentified Justice: I say, but the employer remains liable to the employee.

Mr. Etkind: But the employer remains liable?

No, the employer does not remain liable.

Unidentified Justice: On your theory, no.

Mr. Etkind: Right.

I'm sorry, I didn't understand your question, Justice.

Unidentified Justice: I am just following up on Justice White's inquiry.

But if you... I take it if the employee just sues the employer.

Mr. Etkind: The employer.

Unidentified Justice: And doesn't join the union, what if the employee just sued the employer?

Could he get a judgment against the employer for the entire amount?

Mr. Etkind: Well, no, because he would have to... the union... the employer would have a defense based on his failure to exhaust his remedies against the union.

Unidentified Justice: Well, he comes back and says, I asked the union and the union breached his duty, and--

Mr. Etkind: He would have to prove that the union breached his duty.

Unidentified Justice: --Well, he proves it.

Mr. Etkind: In that case, the employer should... the employee should be able to collect from the employer up until the point when he would have been reinstated.

Unidentified Justice: So you say he could never get a judgment against the employer for the entire amount.

Mr. Etkind: No, he could not get a... unless, unless it could be shown that the employer cooperated in the union's ongoing breach, but that certainly is not the case here.

Unidentified Justice: Even though the original fault was that of the employer.

Mr. Etkind: That's right.

The original fault--

Unidentified Justice: You are really speaking of an intervening cause.

Mr. Etkind: --In the language of torts, it would be a superseding cause, I believe.

That's right.

And that is because... and that is because it doesn't arise out of tort.

It arises out of the national labor policy, which is that rights are only defined within the grievance procedure.

A collective bargaining agreement itself may be violated, but the breach itself isn't determined until it is within... within the grievance process.

In Hines, Justice Stewart stated in his concurring opinion that once a grievance process is exhausted, the employer's failure to reinstate discharged employees cannot be anything but rightful until there is a contrary determination.

There is no difference in result whether, as in Hines, an abrital award is rendered in favor of the employer, or until the time for processing the grievance has expired.

So the point is that there is no breach of the collective bargaining agreement unless such a breach is found in the context of the grievance process.

In other words, the unique feature of the grievance arbitration process, the fact that it is the vehicle for the determination of the substantive rights under the collective bargaining agreement distinguishes an action on a collective bargaining agreement containing such a provision from suit on an ordinary contract.

In the latter case, damages continue to accrue up to the time of trial, because it is only at trial that the rights of the parties are determined.

By contrast, where a grievance procedure is available to the parties, their rights can be determined substantially earlier, so that all parties can conform their conduct to that determination.

Accordingly, where because of the union's wrongs the employer's breach is not brought to its attention in the context of the grievance procedure, it is only fair that the union bear those additional damages that flow from the malfunctioning of the grievance machinery which it caused.

Therefore, in Hines versus Anchor Motor Freight, Justice Stewart explained that the union, not the employer, would be liable for back wages accruing subsequent to an arbitral award that was erroneously rendered in favor of the employer because of the union's breach of its duty of fair representation.

There is no reason for a different result here.

Unidentified Justice: How many joined Justice Stewart in his observations?

Mr. Etkind: Justice Stewart was alone.

The union argues that imposing liability on it for lost wages will have a chilling effect on the exercise of its discretion to settle employee grievances short of arbitration.

In the first place, a rule that imposes liability on an employer for these damages may chill its right to discharge employees whom the collective bargaining agreement would entitle it to dismiss, thus modifying the parties' rights under the collective bargaining agreement.

In any event, the union's contention that the apportionment rule we urge would force it to arbitrate even frivolous grievances for fear that if it did not, it might be assessed back wages, is unfounded.

In Vaca, the Court made clear that a union can breach its duty of fair representation only by conduct that is arbitrary, discriminatory, or in bad faith.

For example, here the jury found that the union had acted maliciously, recklessly, or in callous disregard of petitioner's rights.

In our view, that sort of conduct should be chilled, and moreover, whatever--

Unidentified Justice: This is certainly not the prototypical case that the union is going to face if your view prevails, that a guy coming back from Las Vegas and turning down 12 arbitrations in one day, I mean, that is a... I would have liked to argue that case to the jury myself, I think.

You are going to get some much grayer shadings, aren't you?

Mr. Etkind: --Well, that is true, but of course this Court is faced with the facts of this case, and with the jury and the district court's findings that here the union acted callously and maliciously.

I see my time has expired.

Chief Justice Burger: Mr. Schwartz.

ORAL ARGUMENT OF ASHER W. SCHWARTZ, ESQ., ON BEHALF OF THE RESPONDENT UNION

Mr. Schwartz: Mr. Chief Justice, and may it please the Court, I have heard a few remarks here which I would like to reply to, but before I do, I would like to urge upon the Court my original presentation, namely that the only violation upon which the claimant, the grievant rests his claim for back wages is the violation of the employment contract, and the only party that violated that contract was the employer, not the union.

The union committed no violation of the contract in any respect.

The only violation that we are confronted with with respect to the union is that it violated its duty to the employee in its requirement that it represent him fairly.

Unidentified Justice: In the whole scheme of things, do you think that an employer has no interest in whether a union carries out its obligations to employees who are members of that union?

Mr. Schwartz: Oh, I think an employer does have an interest, yes, sir.

I agree.

And that interest should have been--

Unidentified Justice: That is the whole scheme of the system of labor relations, is it not?

Mr. Schwartz: --Yes, sir, and that employer in this particular case and in every case makes a decision to discharge an employee for just cause, and through three steps of the grievance machinery, the employer persists in that decision.

Then the union in this particular case agrees with the employer.

He says, you have convinced us that this employee has violated his duty to the employer, and he is subject to discharge.

Now, the employer and the union in that case have applied the grievance machinery, have decided in their judgment, which turns out to have been a wrong judgment, decided later on by a jury, that the employee was justly discharged.

Now the question is, shall the union be held liable because it agreed with the employer that the employee was justly discharged, a decision which they did not come to until a jury later on determined that there was a breach of the duty of fair representation.

Now, I think that the union does have an interest... the employer does have an interest, and that the interest of the employer is at all times, especially since Vaca, to make sure that it has discharged the employee if it is a discharge only for just cause.

I do not think that the intervening damage or the intervening act or wrongdoing of the union, a wrong committed against the employee, not against the employer, should in any way absolve the employer from his wrongdoing.

It is just as if a culprit who was slashing away at his victim states that but for the failure of the police to intervene in a timely manner, his knife would not have reached the throat of the victim, and therefore the police are responsible for any of the responsibility beyond the time when they should have been there and the culprit is liable only for mayhem.

Now, that principle is clear in the law of torts, and there is no reason... and the law of trusts, and there is no reason why it shouldn't be applicable here.

As Prosser stated it, where one tort feasor by his act or conduct has created a danger to the plaintiffs and the other has merely failed to discover or to remedy it, indemnity will lie in favor of the second tort feasor.

Unidentified Justice: Counsel, in view of the fact that the employer's breach is a contractual one, do you think a tort doctrine is necessarily applicable?

Mr. Schwartz: I do in this case, because what we are talking about is a classification of the union's wrong as a tort.

Some people treat that as a tort.

Some treat it as a breach of trust.

Some treat it as malpractice.

And that is what we are talking about.

We are talking about the wrong of the union.

Now, the employer has violated the contract, and caused damage to the employee.

Unidentified Justice: I thought Prosser's example dealt with two tortfeasors and the allocation of liability between them.

Certainly the employer here is not a tort feasor.

Mr. Schwartz: No, the employer breached the contract and caused the damage by that breach, and it is the only party that broke the contract, but I don't think that there should be any distinction in logic between the two situations.

Why should the wrongdoing of the union to the employee be a benefit to the employer and not to the employee?

Unidentified Justice: Traditionally, your rules of damages under contract law, I think, are quite different than under tort law.

For instance, in contract law, you have got the doctors, like Hadley against Vacksendale, that restrict rather significantly the kind of damages you can ordinarily recover in a tort action under your doctrine of proximate cause.

I think you have to analyze it as one being a contract violator or breacher, and the other being a tort feasor.

Mr. Schwartz: Well, I do, and I think that as a contract violation, the damages to the employee is that he has been out of a job from the date of his discharge until the date of his reinstatement, and that is caused by the breach of contract, and only by the breach of contract.

The only reason I bring the tort analogy in is because the employer in this case is attempting to relieve himself of some of those damages by resorting to a tort or a breach of duty by the union to the employee, and there is no reason for doing so.

Now, in Lincoln Wilson--

Unidentified Justice: Isn't it true that if the union had not breached its duty, those damages would not have accrued?

Mr. Schwartz: --That's not... I don't know whether that would be true or not, Your Honor.

We don't know what--

Unidentified Justice: Well, isn't that the way the case comes to us?

Mr. Schwartz: --We don't know what an arbitrator would have decided.

We know that a jury decided some... a year later, but we don't know what an arbitrator decided, but the only obligation of the union was to take the case to arbitration.

Unidentified Justice: Well, wait a minute.

Wait a minute.

Doesn't the jury determination mean that as a part of the record in this case, we must assume that the employer breached his contract?

Mr. Schwartz: That's right.

Unidentified Justice: And should we not presume that an arbitrator would have reached the same conclusion?

Mr. Schwartz: I don't necessarily agree with that.

I agree that we must presume that the union breached its duty of fair representation.

Unidentified Justice: Well, but if the employer breached his contract, and we assume the arbitration process works, the arbitrator surely would have come to the same conclusion.

I think we have to assume that.

Mr. Schwartz: Well--

Unidentified Justice: If you assume the other, then maybe nobody should be liable after the date of the arbitration.

Mr. Schwartz: --No, I don't assume that the arbitrator would rule otherwise.

I assume that the employee was improperly represented by the union, and therefore there should have been an arbitration on the case, yes.

Unidentified Justice: And if there had been, and if there had been no breach of the duty of fair representation, the damages would have been cut off as of the date of the arbitration.

Mr. Schwartz: That's right.

Unidentified Justice: So that both wrongs contributed to the damages post that date.

Mr. Schwartz: Well, the only wrong contributed by the union was the wrong in not presenting the case to arbitration.

Unidentified Justice: Right.

Mr. Schwartz: And that is a damage which I think the union is liable for under Vaca against Sipes, but the wrong that arose out of the breach of contract is entirely the responsibility of the employer, because the employer alone broke the contract.

I don't think that we can say that there was a divided liability as to the breach of contract.

What is really being said here is that the union should in some way indemnify the employer for the period of time when the union might have taken the case to arbitration, and didn't in breach of its duty to fair representation, but there is no agreement in the contract that there should be an indemnification.

There is no agreement in the contract that the union will take the case to arbitration.

Unidentified Justice: May I ask this question?

Justice White asked earlier if the union has any duty to the employer to be diligent and faithful in its obligation of fair representation of the employee.

Do you say it has no duty to the employer?

Mr. Schwartz: Well, I don't say that it has no duty, Your Honor, but I say that the only duty it has is to make a decision as to whether or not it will or will not take the case to arbitration.

Now, that--

Unidentified Justice: Does it have a duty to act in good faith, and does that duty run to the employer?

Mr. Schwartz: --I think it does have a duty to act in good faith, but it is not a duty to the employer.

It is a duty to the employee.

Unidentified Justice: But does not the employer have an interest in having that duty performed properly?

It would seem to me that if you say there is no obligation at all to the employer, that then in subsequent litigation the union would always come in and say, well, we acted in bad faith, we were careless, we were negligent, but we can't be liable, we don't owe you any responsibility?

Mr. Schwartz: Well, I don't think it would say that, as long as there is a duty of fair representation, but--

Unidentified Justice: That would always help the employee, if it took that position in litigation, because then it would pave the way for a bigger recovery against the employer.

Mr. Schwartz: --But it would also be... create a liability of the union for... damages.

Unidentified Justice: For fees.

For fees.

That would be all.

Mr. Schwartz: Well, yes, and those can be very severe, and we have, as a matter of fact, in practice, we have had very severe expenses in representing... in defending cases of breach of duty of fair representation.

These cases are proliferating almost to the extent of personal injury actions at the present moment.

Unidentified Justice: Mr. Schwartz, do you agree with the suggestion from the bench that the proper procedure here would have been for the employer after this litigation to institute a suit against the union itself in separate litigation?

Mr. Schwartz: No, I don't think so.

Vaca against Sipes indicated that it all ought to be dealt with as one ball of wax, and I would agree with that.

Unidentified Justice: Well, if it is dealt with in one ball of wax, how are you going to give the employer an opportunity to recover, ever recover from the union?

Mr. Schwartz: I don't think it should.

Unidentified Justice: You don't think it ever should?

Mr. Schwartz: Not for back wages.

Unidentified Justice: So you would relegate it exclusively to possibly attorney's fees and costs?

Mr. Schwartz: That and whatever other expenses are involved to the employee.

Unidentified Justice: Such as?

Mr. Schwartz: There are discovery, litigation expenses.

Unidentified Justice: Such as what?

Mr. Schwartz: Such as litigation expenses, discovery expenses, the counsel fees, of course, which are the major cost, and in that respect, I would like to make a remark about the suggestion of Mr. Poff that Summit Valley indicates that there would be no counsel fees as damages.

Well, that isn't true.

In that case, there was a claim of counsel fees from the defendant, from the plaintiff against the defendant in their lawsuit between each other, but that did not indicate that there would not be damages if the lawsuit for which counsel fees were being asked was a lawsuit against a third party, which--

Unidentified Justice: If the union--

--Mr. Schwartz, would you please stay near the microphones?

Mr. Schwartz: --Excuse me, sir.

Unidentified Justice: Mr. Schwartz, if the union deliberately, as somebody has suggested, in bad faith prolonged the arbitration proceedings, say, for five years, are you suggesting the responsibility would be on the employer to pay the back wages for the entire period with no responsibility on the union?

That is your position?

Mr. Schwartz: No, I would say that if the union deliberately in bad faith extended the... affirmatively took action which extended the period of time during which the employee is out of work, that--

Unidentified Justice: But I thought you said, responding to Justice Stevens, that there was no duty on the part of the union to exercise good faith with respect to the employer.

Did you say that?

Mr. Schwartz: --I think that its duty is to the employee, but I don't consider that, Your Honor, to be an exercise of bad faith to the employer necessarily.

Unidentified Justice: Even if he extended it for five years?

Mr. Schwartz: Well, if it is only doing it for the purpose of extending the liability of the employer, I suppose you could consider it that, but I consider that to be a very rare and very hypothetical situation which I can hardly contemplate.

I should think the employer could find relief against that in some other way.

Unidentified Justice: For example?

Mr. Schwartz: Well, it could go into court and say, look, this union is not acting in good faith, and for that reason I want this proceeding to be halted, to obtain a restraining order, at least to show that there is a violation of the union's duty to proceed with the arbitration.

There is a duty under the contract to proceed with the arbitration machinery.

Unidentified Justice: Is that duty breached in this case?

Mr. Schwartz: No... well, the duty here was the duty not to initiate the grievance machinery, which is no different... I wouldn't say it was no different, but it is equivalent to the duty of the employer not to discharge the employee without just cause.

The employer discharged the employee without just cause.

The union decided that the employee was discharged for just cause, and consequently it did not take the case to arbitration.

That is the situation that we have here, too.

Now, it turns out that the judgment of the union in deciding not to take the case to arbitration was wrong in the view of the jury.

Unidentified Justice: And the court found, and the court of appeals accepted it, that both the union and employer acted maliciously and arbitrarily, so that you have the malice or... founds the fact in this case with respect to both parties.

And why shouldn't the liabilities of the parties be resolved in a single litigation?

It is in every other context with which I am familiar.

Mr. Schwartz: It should be resolved, I say, in a single bit of litigation.

Is that what you suggest, Your Honor?

Unidentified Justice: Yes.

Mr. Schwartz: I would say that, but nevertheless, the obligations and the liabilities are nevertheless separate liabilities, and they are treated as such, and the jury is instructed to treat them as separate liabilities.

Unidentified Justice: Going back to this matter of duty, I think there is a certain ambiguity in some of the responses.

I understood you to say in response to one question earlier that you could not say... you could not say there was no duty by the union to the employer.

Is that your--

Mr. Schwartz: I would say, Your Honor, there is a duty of the union to participate in good faith in accordance with the procedures of the contract.

It is a procedural type of obligation to the employer.

Unidentified Justice: --But that includes arbitration.

Mr. Schwartz: And that includes to go to arbitration provided that the union believes that the case warrants arbitration.

Unidentified Justice: Does that not mean that the employer has a very real interest in the arbitration process, to preserve labor harmony and peace?

Mr. Schwartz: I think it does.

Unidentified Justice: So there is a duty of some kind.

Mr. Schwartz: Well, whether you would call it a duty or interest, I don't know, but it has a definite interest in it, but I don't think that that duty to the employer, if broken, and we will assume a breach, means that the union now has to pay the damages for which the employer is responsible because he discharged the employee without just cause.

I say that there are other damages that it will have to bear, but not that.

Unidentified Justice: Well, do you think that when the union decides not to go to arbitration, and let's assume that that is an arbitrary decision, and it is a breach of duty to the employee, do you think when the union acts in that way, that at the very same time it is breaching a duty to the employer?

Mr. Schwartz: No, I do not.

Unidentified Justice: He hasn't got any duty to the employer to take the case to arbitration.

Mr. Schwartz: Exactly.

That's right.

I say that, yes.

He does not have that obligation.

Unidentified Justice: So the breach of duty to the employee is not necessarily a breach of duty to the employer.

Mr. Schwartz: That's right.

The only thing is that I agree with the Chief Justice.

Unidentified Justice: That if you do take it to arbitration, you have a duty to do so in good faith.

Mr. Schwartz: That you have to act in accordance with the machinery that is provided for in the contract, in good faith, but there is no duty to take the... any case, so far as the employer is concerned, to arbitration.

Unidentified Justice: Then you are bifurcating this duty, however you define it.

You are now saying that there is no duty to go to arbitration, but there is a duty that if they go to arbitration, it must be conducted in good faith.

How do you really separate those two things?

Mr. Schwartz: Well--

Unidentified Justice: The one is just... it is a continuous stream, is it not?

Mr. Schwartz: --No, sir.

I think that I can--

Unidentified Justice: To preserve labor harmony.

That is the purpose of the arbitration clause, isn't it?

Mr. Schwartz: --That's right.

Yes.

I think I can differentiate it, Your Honor.

I think that when a union considers an action taken by the employer which it believes to be a violation of the contract, it has to make a decision, shall it take that case to arbitration or not, and it has to make that decision in the manner provided for in the agreement.

Now, the agreement doesn't say that the union must take it to arbitration.

There is no agreement that I know of that indicates anything of that sort.

All it says is that if the union is not satisfied with the resolution of the dispute in the grievance machinery, it may appeal to an arbitrator.

Now, its consideration of the case, its investigation of the case ought to be done fairly.

Whether that is an obligation to the employer or not, I am not so sure.

I think that those things are basically obligations to the employee whom the union represents.

The only obligation which I, in response to your question, will admit to so far as the employer is concerned is that it use... it apply the administrative machinery procedurally in a proper way, and not take advantage of failings by the employer in procedure or anything of that sort.

That is what I would mean by acting in good faith in connection with the grievance procedure.

Unidentified Justice: Did you try the case?

Mr. Schwartz: No, sir, I did not.

Unidentified Justice: I just wondered about the instructions to the jury.

Mr. Schwartz: The Jury was instructed, as I recall it... I don't have them before me... that it would first have to determine whether there was a breach of the duty of fair representation.

Unidentified Justice: Yes, yes.

Mr. Schwartz: And then, if it found that, then it would then determine whether there was a violation of the agreement, and of course the court used the usual language that has become prevalent in these duty of fair representation cases, callous, reckless, discriminatory, arbitrary.

Unidentified Justice: How about the relative fault business?

Mr. Schwartz: There was no... there was no instruction as far as I can judge from reading the record that the union was... that the jury was asked to find any relative fault.

Unidentified Justice: What about the recovery, though?

What kind of a recovery was it authorized to make under the instructions against the union?

Mr. Schwartz: It was authorized to determine what damages were caused by the employer and the union, and the employer, and in doing so, it apportioned some of the damages for back pay to the union and some to the employer.

Unidentified Justice: Did the instructions authorize it to do that?

Mr. Schwartz: I do not recall, Your Honor.

Unidentified Justice: I beg your pardon?

Mr. Schwartz: I do not recall.

I do not recall whether--

Unidentified Justice: Well, it seems to me that if a union is trying a lawsuit and it has got a... and it is being charged with duty of representation, I would think it would watch out for itself in the instructions to the jury as to what kind of damages the jury is authorized to find.

If the jury is... If the court had expressly authorized the jury to divide up the liability for back pay, which apparently it did, it seems to me the union would... you, certainly, based on what you say here, would be up on your hind legs immediately.

Mr. Schwartz: --I should think so, Your Honor.

As a matter of fact, our brief shows that the trial court instructed the jury

"to break the damages down by determining a hyptothetical date when an arbitration of the grievance would supposedly have been-- "

Unidentified Justice: Now, that is just absolutely contrary to your argument.

Mr. Schwartz: --That's right.

Unidentified Justice: Now, did you object to that instruction?

Mr. Schwartz: I don't recall.

I wasn't there, Your Honor.

Unidentified Justice: Well, was there an objection to the instruction?

Mr. Schwartz: I don't know.

There should have been, I agree.

There shouldn't have been liability in this case.

Unidentified Justice: Well, that point isn't preserved here.

We didn't grant the jury to hear that.

Mr. Schwartz: It is not preserved.

I wish I could argue this case right... could treat this case right from the beginning.

The only finding... There were no findings of fact... findings or facts or--

Unidentified Justice: Well, counsel, why don't you limit yourself to the issues that are presented here unless you are responding to questions?

Mr. Schwartz: --No... well, I am responding to the question, but I do want to--

Unidentified Justice: I was interested because the union is the one that took the case up to the court of appeals, isn't it?

Mr. Schwartz: --The union and the employer jointly, Your Honor.

Unidentified Justice: Yes, and you got relieved of liability.

Mr. Schwartz: That's right.

Unidentified Justice: On the grounds that you weren't liable for back pay.

Mr. Schwartz: That's right.

And we think that--

Unidentified Justice: Which means that really the instructions were wrong.

Mr. Schwartz, this case really boils down, I gather, to a question of the law of damages, and it is your position, as I understand it, that the union can never be liable, just focusing on its liability to the employee alone, can never be liable for a loss of pay.

Is that your position?

Mr. Schwartz: --No, Your Honor.

If the union itself was responsible in any way for the discharge of the employee, or if it--

Unidentified Justice: Well, let's suppose the fact finder determined that the employer initially made a wrongful discharge, but that if the union had exercised its right to compel arbitration, that the employee would have gone back to work on Date X, and that as a result, the employee has been damaged thereafter to the extent of his loss of wages, and you are saying under those circumstances the union may not be held liable as a matter of the law of damages?

Mr. Schwartz: --Yes.

Yes, Your Honor, and that is this case.

This is a case just like that.

Unidentified Justice: It certainly is.

I find it hard to understand why applying normal damages principles you can take that view, assuming the fact-finder makes the appropriate determination.

Mr. Schwartz: Because I don't think that the action of the union, albeit a wrongful act, should inure to the benefit of the employer who committed the violation of the contract.

Unidentified Justice: We are only talking now about an employee.

It is the employee who is the plaintiff.

Mr. Schwartz: Yes, but the employee under the principle I espouse will recover all his back wages.

Unidentified Justice: Well, not under the present posture of the case.

Is there anything wrong in the trial court seeing to it that in the overall scheme of things, where the employee is suing both the employer and the union, and where both are liable for damages, that the employee doesn't make a double recovery, and that there is an apportionment?

Mr. Schwartz: Well, I think that we do have a--

Unidentified Justice: Is there anything wrong with that under the law of damages?

Mr. Schwartz: --That they recover double?

Yes, I do, unless the court is going to impose punitive damages, which this Court has already decided are not appropriate, but the employee, so far as the breach of contract is concerned, is entitled to be made whole under the law of contract damages, and he is made whole if the employer pays his back pay in full.

The only thing that results from assessing the union with any part of the liability is that it doesn't help him at all.

It is the employer who then gets a contribution from the union to the payment of those damages.

Unidentified Justice: Well, isn't it just windfall to the union to be let off--

Mr. Schwartz: It is a windfall to the employer, it's a windfall to the employer if it now obtains part of the damages which it causes from the union instead of paying them in whole.

Unidentified Justice: --What if the employer before trial has gone bankrupt, and so that it is insolvent and can't respond to a judgment of damages.

Could the court impose at least secondary liability on the union for the loss of that employer's payment?

--For the loss of back pay that the employer can't pay?

Mr. Schwartz: Well, I think that's possible.

I don't know the answer to that, but I think it is possible.

If in that case the employee cannot be made whole by an action against the employer, then I think we would have to consider whether or not the damages have thus been changed, and the damages to the employee from the failure to perform the duty of representation has not in fact brought that about.

Unidentified Justice: Oh, no.

Why shouldn't the employee be able to sue the union for its breach of duty, not join the employer at all and say look, if you'd have done what you're supposed to, take this case to arbitration, I would have been reinstated.

And I have now proved breach of duty, and I have proved a breach of contract, and part of my damages are that I've been out of work for longer than I should have been, and you're at fault.

That's part of my damages for your tort.

It's true the employer's been breaching his duty to me all the time, but nevertheless, it's part of my damages, and I don't want to have to... I can't even join the employer.

He's gone somewhere else.

Mr. Schwartz: That's Vaca against Sipes.

The union was sued individually by... alone, and the Court said that there's no reason why it can't be because the union would only be liable for the damages that it caused by its breach of duty of fair representation and not by the damages caused by the violation of the contract.

Unidentified Justice: Early in your argument, Mr. Schwartz, I understood you to say that it was proper to have... I think you used the phrase something like "all one ball of wax", that both these parties should be sued in one suit and that there should be allocation.

Now, did I misunderstand you?

Mr. Schwartz: No.

And I think Vaca against Sipes said that.

But what I'm talking about is what should the allocation be.

I think that it's proper for the two claims to be brought in one suit rather than to have two separate suits.

But the allocation is the question that's before this Court, and I don't think that the union... the allocation should be to require the union to pay for the wrong done by the employer by its violation of contract, and that's all.

The union did cause some damage to the employee by requiring him to go to court, retain counsel and suffer whatever costs there were in pursuing his claim; but those are the only damages for which the union should be held responsible.

Now, I'd like to before... I only have a minute, but I'd like to point out that holding the union back pay will be a considerable hardship to the union.

This Court has considered that in previous cases.

And that the result may well be that a union would prefer and would find it more economical to take all cases to arbitration rather than risk the possibility that some jury is going to second guess it and decide that it breached its duty of fair representation.

And that is not what the grievance machinery is supposed to accomplish.

Finally, these cases have so proliferated already that insurance companies are approaching us.

I've received since my name appeared on the brief, I've received several brochures from insurance companies on duty of fair representation which may be a message to me as to what the outcome is going to be.

Unidentified Justice: You're just joining the doctors and the lawyers.

Mr. Schwartz: That's what it amounts to, yes, Your Honor.

And that I think would be quite regrettable.

I think that the duty of the union should be severely restricted, as Vaca did, and I think that the principles of Vaca and Czosek against O'Mara, as stated in those decisions, ought to be followed; that there is no reason for overruling those decisions because of the peculiar posture of this case.

Unidentified Justice: Of course, you could restrict the contours of the union's liability substantially, have a much higher standard that the jury had to find, or a worse conduct and still have a different result than you suggest on the allocation of damages.

I mean the union's problems could be cured in more than one way.

Mr. Schwartz: Well, the best way and the way that in fact is that the union membership isn't going to stand for the union officers not representing its employees fairly.

The worst thing that can happen to a union official is to find that a lawyer can accomplish something that a union representative couldn't accomplish.

So union officials are very sensitive to their duty of fair representation.

The cases that come before this Court or the courts generally are the odd cases, and in most cases are situations in which there's been a hindsight judgment made by a jury that's sympathetic in almost all cases to the plight of the employee, and in order to give that employee relief, it has to find that the union violated its duty of fair representation.

That's the way the instruction goes to the jury, and that's the kind of situation that we're confronted with in most of these cases.

Unidentified Justice: Well, you'd... I supposed you'd rather... I'm not sure whether you'd rather have it that way, or would you like the employer's defense sustained, namely when he's sued, he says well, you didn't follow the contract procedure; your agent didn't take the case to arbitration, and hence, the grievance ended the whole matter.

The case should be dismissed.

Which way would you rather have it?

Mr. Schwartz: I'm not sure that I understand your question.

Unidentified Justice: Well, normally an employer when he's sued can say I move to dismiss on the ground that you didn't follow the available remedies under the contract.

Vaca relieved the union of that defense, relieved the employee of that defense.

Mr. Schwartz: That's right.

Unidentified Justice: By saying that the employer cannot rely on that defense if the union has breached its duty.

Mr. Schwartz: That's right, and I don't think it should be relieved of that defense.

Unidentified Justice: Well, so you would rather have to face the charge of unfair representation than to have the defense sustained.

Mr. Schwartz: That's right.

I would rather find that to be true.

Chief Justice Burger: Your time has expired now, Mr. Schwartz.

Thank you.

Do you have anything further, Mr. Poff?

ORAL ARGUMENT OF WILLIAM B. POFF, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

Mr. Poff: Yes, Your Honor.

I understood Mr. Schwartz to concede in response to questions that if this employer had been bankrupt that the employee would be entitled to recover his back wages from the union in this situation.

I think if that be the result, and I think it should be the... it certainly should be an admission that the union is responsible for back wages in this situation and should be dispositive of the case.

There was some suggestion of hardship that this case might impose upon--

Unidentified Justice: Why would that be dispositive of the case?

It seems to be consistent with the position that they are liable for the damages that can only be remedied by their own... for what they caused, but they can't--

Mr. Poff: --Well, they have taken the position, sir, that they're not responsible at all, not that they're secondarily liable; and I took that to be an admission that they were at least secondarily liable.

Unidentified Justice: --Well, I suppose they're not responsible at all if recovery can be had from the employer.

They are not responsible for the consequences of the employer's wrong to the extent that the employer can be compelled to pay damages.

That's... I understand their position.

Mr. Poff: It seems to me, however, that while it's appealing to think of these cases in terms of simple contract or tort terms that the law of the duty of fair representation is more complex than that and cannot be considered in those terms.

You are dealing here not with one wrong, as they would suggest... the wrong by the employer... but with two wrongs.

And is there any more equitable way in a fault system of justice that we have to apportion fault and liability between these two wrongdoers... in this case malicious, reckless wrongdoers... than the trial court did in this case.

The jury was, in response to Justice White's question, properly or--

Unidentified Justice: Well, Mr. Poff, according to the union, the union's position was quite inconsistent with the instructions.

I mean the union's position voiced here was inconsistent with the instructions.

Mr. Poff: --It is, yes, sir.

Unidentified Justice: And the Court of Appeals agreed with the union that it was not liable.

Isn't it... wouldn't it have been possible for the Court of Appeals when it decided there was error in entering the judgment against the union, which was certainly consistent with the instructions, couldn't it have ordered a new trial?

Mr. Poff: I think it could certainly have remanded it, Your Honor.

Unidentified Justice: For a new trial.

Mr. Poff: It could indeed, sir.

Unidentified Justice: Because the net effect of its holding was that the instructions were wrong.

Mr. Poff: That is correct, sir.

And the union... the... in answer to your question to Hr.

Schwartz, there were special interrogatories--

Unidentified Justice: Yes.

Mr. Poff: --Submitted to the jury which are part of the appendix in this case.

The jury was asked to make the apportionment of damages.

Unidentified Justice: Exactly.

Mr. Poff: And it did so pursuant to an instruction of the court.

Unidentified Justice: But those instructions then were wholly inconsistent with the view of the Court of Appeals as to the union's liability.

Mr. Poff: That is correct, sir.

And instead of remanding it for a reallocation of damages, which I think would have been appropriate perhaps instead of retrial--

Unidentified Justice: Well, there'd have to be a new trial because it was a jury case.

Mr. Poff: --That is correct.

Unidentified Justice: And the stated remedy is still available, is it not?

Mr. Poff: I beg your pardon, sir.

Unidentified Justice: That remedy is still available as a result of this case.

Mr. Poff: Yes, I think it would be.

Unidentified Justice: I suppose we would have the authority--

Mr. Poff: That's our second point.

Unidentified Justice: --To say that the Court of Appeals was wrong in what it did, that it should have ordered a new trial.

Mr. Poff: Yes, sir.

Unidentified Justice: Mr. Poff, do you think the union is obliged to go to arbitration?

Mr. Poff: Do I think it is obliged to go to arbitration?

Unidentified Justice: Yes, sir.

Mr. Poff: I think that in this case it most... it was held by the trial court and jury to have been obliged.

Unidentified Justice: But it depends on each case.

Mr. Poff: It does indeed, sir.

Whether they need to go in order to fulfill their duty of fair representation.

Unidentified Justice: Yes, yes.

Mr. Poff: And I... in this case it was held that they did have that obligation.

I don't think there is any... I think they have--

Unidentified Justice: So you don't have to go to the general one at all.

Mr. Poff: --Do not have to go to what, sir?

Unidentified Justice: You don't have to go to the general, that in all cases they have to go to arbitration.

Mr. Poff: Oh, no.

No, no, no, indeed, sir.

And I think, in fact, that the place to... as has been suggested by Justice Rehnquist, the place to police the duty of unfair representation, which is going to be a very fragile duty indeed if you accept the union's position in this case because there's no sanction.

There's nothing that... the union just breaches it with impunity.

But it--

Unidentified Justice: Well, it suffers a substantial burden on these cases, I must say.

Even if it doesn't have liability for back pay, there's certainly--

Mr. Poff: --Well, I would think, sir, that in this--

Unidentified Justice: --Certainly some financial outlays in defending the case and in paying your fees.

Mr. Poff: --They haven't paid them yet, sir.

[Laughter]

Unidentified Justice: Well, part of the judgment... part of the judgment is that they must pay part of them.

Mr. Poff: Part of them at least.

I would suggest, though, that a proper policing of the arbitrary bad faith standard is the place to control the unfair representation cases, not in the... and to end the area of an appropriate allocation of damages.

Because here we have a union that concededly is responsible for $30,000 worth of Mr. Bowen's lost wages and the union contending that it has no responsibility for those.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Clayton v. Automobile Workers - Oral Argument

Wed, 18 Feb 2009 06:13:09 +0000

Case:

Clayton v. Automobile Workers

Media File:

80-5049_19810304-argument.mp3

Related Transcript:

80-5049_19810304-argument_transcript.xml

Transcript:

ORAL ARGUMENT OF JOHN T. McTERNAN, ESQ., ON BEHALF OF PETITIONER CLAYTON IN NO. 80-5049 AND OF RESPONDENT CLAYTON IN NO. 80-54

Chief Justice Burger: We'll hear arguments first this morning in Clayton v. International Union and the consolidated case.

Mr. McTernan, you may proceed when you're ready.

Mr. McTernan: Mr. Chief Justice, and may it please the Court:

This is a Section 301 action instituted by petitioner Clayton, my client, claiming that his employer, petitioner ITT, discharged him without just cause in violation of the collective agreement and that his bargaining agent, the UAW, violated its duty to represent him fairly by withdrawing his discharge grievance from the arbitration process.

Clayton's action seeks what has been called by this Court in Vaca v. Sipes judicial enforcement of his contractual rights, and to us that means either a hearing... it means a hearing before a tribunal which can either reactivate his grievance or determine his right to reinstatement.

In the court below both the ITT and UAW asserted as affirmative defenses Clayton's failure to resort to his internal union procedures.

By virtue of an order of trifurcation that issue was tried first and the district court held that the union procedures were adequate to afford him the remedy he sought and dismiss the action against both defendants.

On appeal the dismissal of the claim against the union was affirmed and the dismissal of the claim against the employer was reversed and remanded for trial.

It is true and uncontestable that Clayton did not resort in any way to his internal union procedures.

He was justified in that, we contend, because to have done so would have been an utterly idle act.

The UAW procedures, we submit, were inadequate as a matter of law; they were inadequate in the facts of this case because they could not effect a reactivation of his grievance or his reinstatement; and they were inadequate because they were incapable of rendering a decision within the four-month period allowed in Section 411(a)(4) in the first proviso.

First, as to our position that the union procedure was inadequate as a matter of law, we rely first upon principles enunciated by this Court in NLRB v. Marine Shipbuilding Workers to the effect that where the employee's complaint raises matters in the public domain and go beyond internal union procedures, the union procedures cannot be used to delay his resort to the court, to the National Labor Relations Board, for vindication of his rights under Section 8(b)(1)(a) of the amended National Labor Relations Act.

Here, too, Clayton asserts rights in the public domain, his right to fair representation, the union's duty fairly to represent him, a duty as developed by judicial interpretation and application of Section 9(a) of the amended National Labor Relations Act.

And we think that the rights involved stand on the same footing as the rights involved in NLRB against the Marine Shipbuilders.

The principle that I have just tried to enunciate or elaborate was applied by the 9th Circuit in Bise v. the I.B.E.W. with a similar result.

But perhaps more fundamental than this and going to the competence of the union tribunal is the fact that we deal here with rights governed by federal law.

This Court has enunciated in a number of cases... Vaca v. Sipes, and Motorcoach Employees v. Lockridge, the automobile case, the name of it escapes me for a moment... Humphrey v. Moore... that there's a duty of fair representation.

The claim of the breach of that duty is part and parcel of the Section 301 action, and it is controlled by federal law, and the last formulation of that in the Lockridge case was to the effect that whether the proof established the requisites of the breach of duty is a matter of federal law.

Unidentified Justice: Well, has the Court really held that these are 301 actions?

Wasn't the genesis of the Vaca v. Sipes doctrine the cases of Tunstall and Steele, years ago, under the Railway Labor Act, when there was no 301?

That is, a failure to represent employees fairly and squarely.

Mr. McTernan: But Vaca v. Sipes, Mr. Justice Stewart, went far beyond the Steele and Humphrey v. Moore, and held that where that breach exists, that is the condition precedent to the employee's right of action under 301 in the court for breach of the collective agreement.

Unidentified Justice: Well, first of all, he has to show and prove that he was not properly represented through whatever the grievance and arbitration procedure may have been by his representative, the union organization.

Mr. McTernan: Right.

Unidentified Justice: And only then, after he's proved that, may he sue the employer.

Is that the?

Mr. McTernan: Right.

And in that--

Unidentified Justice: And any suit against the employer would be a plain vanilla 301 action.

Mr. McTernan: --Well, but the language in Vaca v. Sipes... there are two sections, and one I recall precisely is that the Court said in that opinion that the claim of the breach of the duty of fair representation is part and parcel of the Section 301 action.

And I think that there are other opinions from this Court as well as many in the courts of appeals which say that the breach of the duty claimed is part of the Section 301 action.

And as a matter of fact, it would seem to be necessary to conclude that if proving that breach is a condition precedent to going on to the claim of--

Unidentified Justice: Well, except that the Tunstall and Steele cases were decided in the total absence of anything like 301.

Mr. McTernan: --Quite so; quite so.

Unidentified Justice: And they were actions only against the union, were they not?

Mr. McTernan: That's right.

As I recall, that's true.

Unidentified Justice: I don't think you're right there.

They were up against both, the railroad and the brotherhood, weren't they?

And wasn't the action, the complaint, that then you go to the mediation board?

And the fact was the mediation board was appointed by members of the brotherhood and the employer?

Mr. McTernan: Mr. Justice Marshall, I am unable to recall whether the employers were involved in those actions or not.

Oh, excuse me, they were in Humphrey v. Moore, but in Steele I'm not sure.

But the rest of what you said I accept as true, yes.

That's the way I recall it.

But what I want to emphasize in response to Mr. Justice Stewart is that the claim of breach of the duty of fair representation is coupled with the claim of breach of the collective agreement.

And the employee is allowed to sue the employer in court, thus not being involved in the arbitration proceeding, only by virtue as proof that the union has breached its duty to him.

So I say that if we deal here with matters of federal law under Section 301 both with reference to the claim of the breach of duty and the claim of breach of the collective agreement, we deal with matters which are entrusted to the courts under Section 301, the statute explicitly to this effect, and only the courts can interpret and apply that law; the UAW tribunals are not competent to do so.

And for the courts to delegate, if you will, that responsibility to the courts would be a violation of the principles of Lincoln Mills, and therefore I say that for all of these reasons that this UAW procedure was inadequate as a matter of law.

Unidentified Justice: Well, do you concede, Mr. McTernan, that the liability of the employer under an action such as this is necessarily conditioned on the liability of the union also?

Mr. McTernan: Well, it's conditioned upon proof that the Union breached its duties, and this Court has held that the employees may sue the employer alone and prove in that action the union's breach of duty, and therefore establish his right to go ahead on the merits of his breach of the collective agreement claim.

Now, when we get to damages we have another problem and as the Court said in Vaca v. Sipes, the union's liability to the employee in these cases is only for the increases, if any, and the pecuniary damage done to the employee by reason of the union's conduct, but the union cannot be held liable on damages for the damages caused by the employer's conduct.

And so the doctrine of comparative fault, if you will, is established in Vaca so as to involve an appointment of the damages as between the employer and the union.

Have I answered your question, sir?

Unidentified Justice: Part of that, I suppose, is that if he sues the employer alone and that case went to judgment, the judgment against the employer should not include any damages that were caused by the union.

Mr. McTernan: I would think so, yes.

Well, you see, if he got a judgment against the employer, that might very well be an order of reinstatement with back pay at least up to the point where the union's conduct took over.

Unidentified Justice: Well, not if the union was responsible for the discharge.

Mr. McTernan: Oh, well, now, you've raised a different point.

Unidentified Justice: It's not a different point if the union had maliciously caused the discharge.

I don't know that the employer's going to be liable for back pay.

Mr. McTernan: Mr. Justice White, this Court has been very careful to distinguish those cases in which the conduct of the employer and the conduct of the union were independent and discrete, and where each would be then liable for his proportionate share of the damage caused.

But where they act together, as was pointed out in the opinion in Czosek v. O'Mara, there you have a different problem, and there can be joint liability because they acted jointly.

Unidentified Justice: And what if the union tells a lie to the employer about an employee and the employer discharges him?

Mr. McTernan: This Court has affirmed in a number of cases NLRB orders where it is quite clear that the employer acted under pressure from the union, but yet the employer is responsible for its conduct.

Now, the apportionment of it is a different matter and I'm not arguing that now.

But I say that the employer can be liable and has--

Unidentified Justice: Well, in those cases the employer knows that it's acting under pressure from the union.

Suppose it's acting in perfectly good faith and the union just tells it a lie about?

Mr. McTernan: --Then I think the apportionment rule would apply, but I don't think the employer would be relieved if his duty to reinstate the man.

Unidentified Justice: No, no, but the he certainly wouldn't be paying back pay.

Mr. McTernan: I think that if all of the back pay losses stemmed from the union's conduct, then I would say--

Unidentified Justice: All right, all right.

Mr. McTernan: --Yes?

Unidentified Justice: Mr. McTernan, may I ask you a kind of a preliminary question?

If you assumed, contrary to your argument, that the union did provide a completely adequate remedy, that they had some totally impartial review situation and would give an answer within two weeks, say, would you concede or would you not that in that situation there's a duty to exhaust?

Mr. McTernan: Well, sir, I don't think that it's consistent with Lincoln Mills for the judiciary to delegate to union tribunals the interpretation and application of federal law under Section 301; number one.

And number two, I think that however detached and dignified the union tribunal is and however fast it could act, it simply is unable functionally to effect the most important aspect of the restoration of this employee's contractual rights, namely, his right to have his job back.

Unidentified Justice: Well, supposing the collective bargaining agreement has a provision in it that if that review board found there was inadequate representation there's a duty to reopen the arbitration proceeding, and so on.

I want to assume for a moment that you could conceive of an adequate remedy.

I want to know whatever or not you would still argue... which I don't see why you couldn't, but I just want to know what your view is... would you still say there's no duty to exhaust?

Or does this depend on inadequacy?

And if there is a duty to exhaust, what's the source of it?

Mr. McTernan: I think that there is no unqualified duty to exhaust.

I think that exhaustion which involves the union tribunal and the interpretation and application of federal law would be a miscarriage of the doctrine under Lincoln Mills.

However, I can see the situation in which, if the union tribunal had the power to reactivate the grievant by finding that the union breached its duty, there might be some room there for requiring exhaustion, assuming that the time limitations could be satisfied.

In that we have a problem here.

In this case, Mr. Justice Stevens, there is no provision in the collective bargaining agreement for the arbitration or further processing of grievances which the union decided it had withdrawn in breach of its duty.

As a matter of fact, as I intended to say later, there is evidence in this record of an intent quite to the contrary.

There was a stipulation at the trial that one, the grievance was withdrawn from arbitration.

It was the end of the road so far as the contract remedies were concerned, and my colleagues here advised the trial court that ITT conceded that it had no obligation whatever to reconsider the grievance even if the union found that there had been a breach of its duty.

Unidentified Justice: But you do concede, do you not, under this agreement that the employee couldn't go indirectly into court?

He had to first go to the union and see if the union would press his claim to arbitration?

Mr. McTernan: I don't concede that in this case.

Unidentified Justice: Oh, yes; we're talking about the grievance procedure.

Mr. McTernan: The collective bargaining agreements procedure?

Is that what we're talking about?

Unidentified Justice: Yes; the first stage.

Mr. McTernan: Well, the grievance procedure under the collective bargaining contract provides for a three-step--

Unidentified Justice: But did the employee ask the union to take it to arbitration?

Mr. McTernan: --Oh, yes, and as a matter of fact arbitration was requested and then withdrawn by the union.

Unidentified Justice: Yes, but he had to do that, didn't he?

Mr. McTernan: Oh, no question about that.

He had to invoke his contract remedies.

Unidentified Justice: Right.

Mr. McTernan: That's very clear in all of the cases, yes.

And we don't claim that he would be entitled to side-step those at all.

Of course he's required to do that.

It's when he's deprived of those remedies by union conduct that breaches--

Unidentified Justice: Well, Mr. McTernan, in prior cases, I recall, when it was suggested that if the union breached its duty, and therefore the employee shouldn't be bound by defective grievance and arbitration procedures, I recall the arguments on behalf of the employee were that he shouldn't be sent back to arbitration either, because he would be there being represented, or at least accompanied by, or at least with a party in the picture that had shown it incapable of representing him.

Mr. McTernan: --Yes, there is that problem, and that problem exists, it seems to me, in any reactivation case.

I don't think we have to meet that problem here.

Unidentified Justice: No.

Mr. McTernan: But let me say that in your opinion in Vaca v. Sipes, you considered the question of whether the Court should decide the collective bargaining contract issue or whether it should be remanded for arbitration, and the Court held there, in your language, that this was a remedy for the trial court to consider in light of the circumstances of the particular case.

And it seems to me that's a very sound approach to it, because I don't think it's possible to make an inflexible rule.

I had hoped to save some of my time.

May I desist now and resume later?

Chief Justice Burger: Very well.

Unidentified Justice: Mr. McTernan, before you sit down, there's been called to my attention a recent 2nd Circuit case decided about two weeks ago, Johnson v. General Motors.

Are you familiar with that one at all and how it bears on this?

Mr. McTernan: No, I'm not, Your Honor, I'm sorry.

May I conserve--

Unidentified Justice: It might be worth looking into.

I'm not saying it's positive one way or the other, but I think it does bear on this issue.

Mr. McTernan: --Thank you.

Chief Justice Burger: Mr. Meiners.

ORAL ARGUMENT OF EVERETT F. MEINERS, ESQ., ON BEHALF OF PETITIONER ITT GILFILLAN, ETC. IN NO. 80-54

Mr. Meiners: Mr. Chief Justice and may it please the Court:

I would like to initially direct my comments to the very difficult if not impossible situation which the lower court decision has left the employer in.

The employer must defend the union's good faith as a result of that decision in refusing to go to arbitration.

The employer, of course, was not a party to that decision, wherein the union made the determination that there was no cause in their mind, no justification, to take that grievance that Mr. Clayton had filed and that they had initially requested arbitration.

They concluded that there was no reason to take that matter to arbitration, that they could not prevail on that case.

But the employer was not a party to that process.

In the grievance procedure and arbitration procedure the union is the party that investigates that procedure and makes that determination.

The company did not take any action and was not involved in any manner in a determination or an attempt to convince the union not to proceed to arbitration.

Unidentified Justice: I might have missed it, but the Union didn't give any reason for withdrawing, it just withdrew; isn't that right?

Mr. Meiners: Well, Your Honor, they did, the union steward did write a letter to the National Labor Relations Board advising them that they had investigated the case.

On page 78 of the Appendix there's a copy of that letter indicating that they found no just cause, or that there was just cause for the termination, and indicating also that Mr. Clayton was a union steward and was held to a high standard of care with respect to activities of that type.

Unidentified Justice: Mr. Meiners, as I've tried to think through this argument that the employer is in an impossible position because he doesn't know the facts, but isn't it correct that the employee has the burden, rather severe burden, of showing arbitrary conduct by the union and what it really amounts to is, you have two defenses?

You still have your defense that you didn't reach the contract in the first place, and you have the additional defense that maybe he can't prove arbitrary conduct.

It seems to me that's a better position than the employers are in a lot of lawsuits.

Well, but not as good a position as you're in right now, having won in the arbitration.

Mr. Meiners: Well, having there withdrawn the request for arbitration, that's correct.

The problem that you have is that the unions may get to the... or the employee may reach the underlying grievance without having to be held to the strong burden of establishing a breach of a duty of fair representation that he may have to establish with the union as party.

If the union is not a party, the employee merely has to prove to them a prima facie case.

And assuming that the prima facie case--

Unidentified Justice: Yes, but it's still a tough prima facie case.

Mr. Meiners: --Yes, I certainly admit that.

However--

Unidentified Justice: It's the same legal standard as if the union was a party.

Mr. Meiners: --That's correct.

However, there may be no one to defend against that claim.

The union may no longer have, certainly has no monetary incentive in order to participate in that proceeding.

The union members who made that decision are not under the control or direction of the company.

Unidentified Justice: The argument is made in one of the amicus briefs, I don't remember which, that suppose you have a situation in which for some reason the employee elects just to sue the union and doesn't sue the employer.

And there the union, in order to establish no damages, finds itself in the position of demonstrating there was no breach of contract.

So is it any further--

Mr. Meiners: I'm not sure that the underlying contract issue should be reached in that lawsuit where--

Unidentified Justice: --Well, as a matter of proving no damages it's certainly relevant.

Mr. Meiners: --Well, it's certainly relevant to the issue of proving no damages, but if the employee only proves that there's been a breach of the duty of fair representation, certainly under Vaca there would be this allocation problem.

But his next step then would be to establish that there has been a breach of the contract.

My personal feeling is that neither the company nor the union should be in a situation where either is required to defend the actions of the other in the discharge situation.

Unidentified Justice: Well, they don't have to.

I mean, you still have your own defense that you had no breach of contract.

Mr. Meiners: That's correct.

However, that destroys the efficacy of the arbitration grievance procedure which normally is a complete block to the issue of the underlying, reaching the issue of the underlying grievance unless there's a breach of the duty of fair representation by reason of the lower court's decision in this case.

It is true the prima facie case, is still there but there may not be a defense or if there is a defense which the employer has to present, he has to either subpoena or try and obtain the cooperation of the union in being able to present some kind of a defense to that case.

He is not the party that has the information to present a case that shows the reason why the union did not breach its duty of fair representation.

I think this illustrates from the company's viewpoint the severe problem that we see in this type of situation.

It is not a case that may occur every time by any means, but the union may for political reasons take a viewpoint that is going to remain neutral; it's not going to encourage or assist the employer in presenting a defense to the breach of the duty of fair representation.

Unidentified Justice: Is the employer put in this position you describe every time the union declines to support the employee's claim, or even assuming for perfectly valid reasons, as you do here?

Mr. Meiners: I am sorry, I don't understand, I don't follow the full question.

Unidentified Justice: Does this problem for the employer arise every time a union declines to carry the ball for the employee?

Mr. Meiners: Well, it arises only when there is a claim by the employee that there has been a breach of the duty of fair representation.

Unidentified Justice: Well, I'm assuming that.

Mr. Meiners: And in that situation if the union wants to support... the union usually would take a position, in our view, fairly... if the union is acting fairly and honestly, they would take a position that they're trying to defend and show why the action that they took was taken in good faith.

The employer had no part in that proceeding and should not be responsible, in our view, for attempting to defend a traditional party that the employer opposes.

Unidentified Justice: Except, Mr. Meiners, the real reason, as I understand the briefs, is the reason they abandoned the claim was they thought there was no merit in it.

Mr. Meiners: That's correct.

Unidentified Justice: And you're able to prove that, if the facts are as they're described in some of the briefs, it's a fairly simple case.

Mr. Meiners: Well, that may be true, yes.

We would hope so, if we were ever called upon to present that case.

But the problem here is one of whether or not the union's decision not to proceed to arbitration is one which the employee at will can avoid?

And whether or not the exclusivity that the union has is going to be affirmed, and what burden is going to be placed on the union for their actions as opposed to the company for their actions.

We're certainly more than willing and we're willing initially to defend this matter in arbitration.

But now we're six years down the road.

The back pay that Mr. McTernan referred to as early reinstatement is a situation which has a tremendous impact upon the employer at this point.

Arbitration is a speedy remedy which we would normally go through and have this matter resolved in a few months' time, as opposed to getting involved--

Unidentified Justice: You don't really have an exposure for back pay during the period that you could rely on the arbitration award, do you?

I think you have a duty... assuming he wins ultimately, you might have to reinstate, but you're not liable to back pay for the interim, I don't think.

Mr. Meiners: --That's correct.

Under Vaca, the allocations theory should place that burden on the company.

Unidentified Justice: It would seem to me, just again thinking out loud, that most of the time, I would assume, when the union abandons a claim, it's probably because it doesn't think it has any merit.

I assume it does that thousands of times around the country.

And normally the company is perfectly able to substantiate the reasons there's no merit to claim.

I'm a little puzzled about why it's such a burden.

This doesn't necessarily reach the merit of the ultimate outcome of the case.

Mr. Meiners: If you look at the practical viewpoint of presenting the defense to the breach of the duty, I think that's the... we're skipping over the defense which has to be presented or should be presented.

Why should the employee... I guess maybe we can get back to this... why should the employee be able to go to arbitration and require a resolution of this issue if the union in good faith had made a determination that this is not an issue that should be resolved in arbitration?

Unidentified Justice: Well, I thought that the employee has got the burden of proving a breach of duty, and you don't prove a breach of duty just by saying that the union failed to take it to arbitration.

Mr. Meiners: That's correct.

Unidentified Justice: So, it's a rather... if reasonable men could have differed about the validity of the claim, the union is going to win.

And it's not just a low threshold question that the employer has got to get over.

Mr. Meiners: Well, I think that for a lot of the reasons that we have indicated that this presents... puts the union and the company in a very difficult position to attempt to present a case on behalf of a party which it had no knowledge of.

For instance, we would have to, if this case were to go back down to trial or to arbitration, the company would have to commence some type of a discovery process, compulsory discovery process possibly, in order to obtain the facts which could be used to present a defense to the breach of the duty of fair representation.

Certainly, we're in possession of and would be able to present the facts with respect to the underlying grievance itself.

Unidentified Justice: But here in the discovery, presumably, is you take a deposition of the steward and he says, I investigated the claim and I thought the company was right; that's why I abandoned it.

Mr. Meiners: Except, the union may well not be in a position that they feel that it is either politically or appropriate for them to take an active role in this.

And it may be one where it is difficult for the employer to obtain the cooperation of the union in presenting their claims.

Unidentified Justice: The real issue in these breach of duty cases, as I understand it, at least in an awful lot of them, is whether or not there was real substance in the claim that the employer breached the contract.

Mr. Meiners: Well, but then, in our view--

Unidentified Justice: Your employer is the one that knows that.

And if you can substantiate, even make a reasonable case, that you fired him for cause, like the contract required, there's not going to be any breach of duty in the union, is there?

Mr. Meiners: --No.

There's not going to be a breach of the duty in the union; that's correct.

But the--

Unidentified Justice: But there's also... if one were to adopt the principle that the employee can go directly into court, you're going to inevitably be involved in a lot of line-drawing problems.

While some may be simple as Justice Stevens says, that the union simply decided there was no merit to the claim, but there could be conceivably some very complex reasons why the union decided not to process the claim.

Mr. Meiners: --Yes, there could.

And I think that from the employer's viewpoint, this gets back to the basic problem that we see whereby this type of a case may end up for resolution before a court and/or a jury.

It is our belief that the better method to resolve this controversy would be to have a remand of the case to arbitration and for the arbitrator to review the issues and to make the ultimate decision which he should have made, should have been called upon to make.

But we look at the decision of this Court in the Nolde Brothers case as possibly a basis whereby this Court can determine that there is a theory where, that the exhaustion of internal union remedies may result in the reinstatement of the grievance in the arbitration procedure.

In that case, of course, the--

Unidentified Justice: How can you get the employer back to the arbitration table when the contract time has... when all he promised to do he's done?

Mr. Meiners: --Has expired during the process of?

Unidentified Justice: How can you get him back?

Mr. Meiners: Because I believe that the Nolde Brothers decision raises a substantial question as to whether or not because of the national labor policy that is deemed to be incorporated in the collective bargaining agreement when it is written, that... and in that case the decision indicated that unless the agreement expressly or directly negated the possibility of the grievance in that instance... of course the contract had expired... I think that the same situation can be said to apply here.

There's nothing in the contract which expressly provides that if there is a violation of the breach of the duty of fair representation, that the grievance cannot be reinstated in the procedure.

That subject is not discussed, and based on the strong national policy which favors arbitration as a method of resolution of these disputes, we would suggest that the processing of Mr. Clayton's claims through the internal union procedures could resolve--

Unidentified Justice: Would you say the same thing in a joint board situation where there was no arbitrator?

Mr. Meiners: --Would I say the same thing in a joint board situation?

Well, I think that a joint board in my mind does raise some differences because it is not the normal, independent arbitrator that--

Unidentified Justice: They're in rather widespread use though, aren't they?

Mr. Meiners: --In some areas.

In construction areas they are--

Unidentified Justice: Teamsters' areas?

Mr. Meiners: --Correct.

But it's not in our area, fortunately.

So that, we can see a situation under your Nolde Brothers decision and looking at Vaca v. Sipes, that the employee does have a right that if there is a determination by an internal union remedy, that the employee does have the right to reinstitute the grievance and to proceed back into arbitration.

And I think that one of the points that needs to be examined is the posture of the employee when he goes back to the arbitration procedures.

I think that the employee should raise if... there are a number of different cases, some cases where the union is clearly discriminating against the individual.

In other cases they have merely let lapse the time limit, in a situation where they've let a time limit lapse negligently or whatever the standard is that makes that act be a breach of the duty of fair representation.

Unidentified Justice: Would you agree that after the letter that was written, Appendix page 78, that he hasn't got a very enthusiastic advocate in the arbitration proceeding?

Mr. Meiners: Yes, that's correct, I would agree with that.

Unidentified Justice: He'd have to go out and get his own counsel.

Mr. Meiners: I think that one of the possibilities is that the employee may obtain his own counsel in an appropriate case.

I think that this is a matter which should be raised before the internal union remedy, before the PRB in this instance, to determine that maybe there is an internal discrimination against him, and he needs additional protection.

Unidentified Justice: Anything in union regulations or the contract that limits his right to get independent counsel in the arbitration?

Mr. Meiners: In the arbitration?

Normally, in an arbitration he would not have that right.

Unidentified Justice: Normally... not here.

Under his contract?

Mr. Meiners: Under this contract the employee does not have a right, normally, to have a separate independent counsel.

This is a matter that when the grievance is presented at the arbitration the union of course is the exclusive agent and the only party that's authorized to have a counsel at that meeting.

Unidentified Justice: But here his advocate has in effect entered a guilty plea.

Has he not?

Mr. Meiners: It may be... yes, that's correct.

Unidentified Justice: That would go before the arbitration board, wouldn't it?

Mr. Meiners: I'm sorry?

That letter?

It may, and it may be a reason, a justification, in this type of situation for the employee to have separate independent counsel.

Unidentified Justice: Of course, you agree that the predicate to getting back to the arbitration table or getting to the contract claim at all is contingent on proving the breach of duty by the union?

Mr. Meiners: That's correct.

Unidentified Justice: Which, in the first instance, if you don't require them to... or, in any event, is going to have to be decided by a court.

Mr. Meiners: Well, I don't believe that's true that in any event it would have to be decided by a court.

I think that that is the ultimate--

Unidentified Justice: It's true that the National Labor Relations board has held in Miranda Fuel or some case that that's an unfair labor practice, too, a breach of duty by the unions?

Mr. Meiners: --Yes, that's correct.

That's a separate unfair labor practice.

Unidentified Justice: If there's a suit filed against the employer and the union claiming the union breached its duty and therefore the employer breached the contract, the courts... before there'll be a recovery against the employer there's got to be proof a breach of duty by the union.

Mr. Meiners: That's correct.

Unidentified Justice: Well, then, if that's going to have to be tried out, an awful lot of the facts in the case are going to be there.

Mr. Meiners: Well, that's true, but the court is not required to reach the ultimate issue of whether or not there was a breach of the contract.

The court only has to make a determination that it is reasonable to conclude that there may have been a breach in that the union's action was arbitrary, capricious, and was a breach of the duty of fair representation standard.

The court is not required to reach that issue.

But I'd like to--

Unidentified Justice: I don't understand that, I just don't understand that.

If I were an employer I would think that there would have to be proof of a finding by the court that the union breached its duty before the employer would ever have to face the contract provisions.

Mr. Meiners: --Yes, I agree with that.

Yes.

Unidentified Justice: Well, then, this has to be tried out in a court, and an awful lot of the facts and the circumstances will already be there on the table.

Mr. Meiners: Yes, that is correct.

Unidentified Justice: But the breach of duty concept is a fairly flexible one, is it not?

That the union is considered to have a great deal of discretion as to what claims to press and what not, and what trade-offs to make in the administration of the contract?

Mr. Meiners: Yes.

The union, of course, has a broad range of authority here and is only held to a very stringent standard, and it is generally authorized, of course, under Vaca v. Sipes to be the exclusive agent and to represent the employees in all of their cases, and to make determinations if sometimes the case that the employee is wanting to pursue through arbitration is not justified, and even though it might sacrifice some rights of his for the entire unit, that the approach taken by the union is the correct approach.

So that the union does have a broad authority in that type of determination.

Chief Justice Burger: Well, your time has expired now, Mr. Meiners.

Mr. Meiners: Thank you.

Chief Justice Burger: Mr. Whitman.

ORAL ARGUMENT OF M. JAY WHITMAN, ESQ., ON BEHALF OF RESPONDENT UAW AND LOCAL 509 IN NO. 80-5049

Mr. Whitman: Mr. Chief Justice, and may it please the Court:

The union's approach and concerns and perspectives here are quite different from those of either Mr. Clayton or ITT.

To begin with let's be clear about what this Court does and does not have to decide in this matter.

The union, particularly the UAW, is not interested in getting into the business of judging federal rights.

We are not enfranchised by Article III.

The Court needn't in the situation presented here reconsider or revisit Vaca or Maddox or Hines or any of these issues.

This is a case where Mr. Clayton made no attempt at all, where he was told he was a steward, the remedies were facially adequate.

There are really only three logically possible sorts of case that can arise.

One is this case, the no-attempt case, where no attempt was made.

The second is the case alluded, sort of case, category of case alluded to by Mr. Justice Stevens, where an attempt is made but the contractual provisions are fashioned in a way so that the grievance and arbitration procedures are perpetually open to the possibility that the union through internal review might reverse itself and order its agents to reinstitute the matter into the grievance procedure and hence to arbitration.

That's the case, for example, in the General Motors, Ford, Chrysler--

Unidentified Justice: How could you do that in this case, in the light of this letter?

How could you reverse your position in the light of this letter?

Mr. Whitman: --Mr. Justice Marshall, the answer is that that letter was written by an international representative--

Unidentified Justice: On behalf of you.

Mr. Whitman: --who is one of our line troops and is subject as the agent of a corporation is subject to the board of directors.

Our position is simply that Mr. Clayton should have asked the store manager before he brought suit.

Unidentified Justice: But that's not what this said.

This man says he hasn't got a suit.

Mr. Whitman: That's right.

Unidentified Justice: That's what he says.

You could reverse that in the light of this?

You can't eat it.

It's going to be there.

Mr. Whitman: That takes us to the third set of cases, Your Honor.

If that problem arose in the General Motors system, it would go back into the arbitration procedure.

Or if it arose in General Electric, where there are no time limits, it could be refiled without any trouble.

Or it could arise in a contract where an individual can decide to go to arbitration or not, that the union has no exclusive right to make that decision.

You are quite right; that is not this case.

This is a no-attempt case.

The third sort of case is a case where the attempt is made but if the contract procedures in the regular course of their operations were allowed to function, the grievance and arbitration procedure would close.

Those are the sorts of cases where there is a dispute as to whether or not the matter is arbitrable.

Now, I can address, if I will, all those cases, but I would like to stress that the issues that have been discussed earlier, many of the issues are issues which arise only on that third set of cases, which is not this case.

This is a case where no attempt was made of any sort.

And so the Court really needn't get into those areas, particularly on this sort of a record.

Unidentified Justice: Mr. Whitman, will you help me out on one rather simple point, I guess?

What's the source of the duty of the employee to make an attempt?

Mr. Whitman: The source of the duty, Your Honor, is the discretion of the federal judiciary in Article III.

It's an inherent discretion of the district court to stay its hand until the controversy is ripe, consistent with federal policy and consistent with Republic Steel v. Maddox, to see that individuals are told that they ought to ask the store manager, they ought to give the union a fair opportunity to take a crack at this.

Now, if the fair opportunity comes to ground, if it's futile, I mean, if he's told, as was the case in Glover, that this is not for blacks, that's a different matter.

But the federal courts ought to have the discretion and ought to apply it as a routine matter consistent with Maddox to hold their hand, at least for that period.

Unidentified Justice: Well, is the conclusion that the federal judge should reach... now, it's a kind of the federal judge is both the lawmaker and the decider under your view... that if there's no attempt whatsoever to get the union to review the decision, that ipso facto establishes an inability to prove a breach of the duty of fair representation.

Then it would necessarily follow, it seems to me, that the employer would be entitled to the benefit of that holding.

Would you agree with that at all?

Mr. Whitman: I would agree that if the man is told to go file his appeal and he does, and it comes to an end, then he ought to be able to resume his litigation.

Unidentified Justice: No, but suppose he won't do it?

Mr. Whitman: Well, then, that's a strike on him.

Unidentified Justice: And then what happens as to the suit against the employer?

Dismiss it?

Mr. Whitman: Well, what happens to the suit against the employer?

Well, typically, if... I presume he'd then proceed against the employer.

Unidentified Justice: How?

He has to, without being able to prove the breach of duty by the union, he can't proceed.

Mr. Whitman: No, the question is whether he is not able to prevail against the union because he didn't attempt the internal procedures and didn't give that opportunity to the union.

Unidentified Justice: You think this holding, this exhaustion, just protects the union, and that he could still be free to prove your breach of duty in his suit against the employer?

Mr. Whitman: I don't see any logical impediment to that possibility, Your Honor.

Unidentified Justice: How about the Steelworkers' trilogy?

The idea of keeping this whole kind of dispute out of the federal courts as much as possible?

Mr. Whitman: The better result would be for the trial bench not to rush into putting the employer in the sort of dilemma of nonfinality which was presented in the Hines v. Anchor Motor Freight.

But it may come to the point that the employer simply will not... that the union reverses itself and the employer refuses to reentertain the grievance, or insist on the contractual remedies.

The employer, at that point, it seems to me, has chosen litigation over arbitration.

Now, the employer may not do that.

The contractual provision, like the General Motors or General Electric provisions, might require him to put it back in, in which case the problem will go away.

Unidentified Justice: Does the employee have the same choice as the employer to choose litigation over arbitration?

Mr. Whitman: Your Honor, all that's required to decide this case is to decide that federal district courts have the discretion as a routine matter to require the attempt.

There was no attempt here.

Whether or not, if an attempt were made, and what follows from that is--

Unidentified Justice: Well, what would an attempt have involved, Mr. Whitman, in this case?

Mr. Whitman: --A letter to Douglas/Fraser.

Unidentified Justice: That's all?

Mr. Whitman: That's all.

Unidentified Justice: The President of the UAW?

Mr. Whitman: Yes, Your Honor.

Unidentified Justice: And does he then act on it, or is there some--

Mr. Whitman: He processes it... well, it is typically presented to the International Executive Board which sits in panels of three, and they go out to, the location and they have a hearing and they make the report--

Unidentified Justice: --Nothing of this nature goes to the general convention, annual convention, or anything?

Mr. Whitman: --The step above that, by analogy to the appeal to the stockholders in a corporate case, is to one of two places, at the option of the appellant.

One is to the Convention Appeals Committee, which originated as a standing committee of the convention.

It's a body of delegates, elected delegates, rank and file, selected by lot, that meets every six months and decides that.

Or alternatively, the man can go to the Public Review Board and tell his problems to Dean St. Antoinne and Robin Fleming and gentlemen of that sort.

The choice is the appellant's.

Unidentified Justice: What I'm trying to get at, initially, the first step would have to be a letter to Mr. Fraser?

Mr. Whitman: Yes.

Unidentified Justice: And then some proceeding occurs, and his claim is rejected at that level?

Mr. Whitman: Yes.

Unidentified Justice: Then he has to go to one or the other of two other levels, does he, or whatever it may be?

Mr. Whitman: No, it's the final level.

He has a choice of which one.

Unidentified Justice: But the second one is what, about six months or more, you suggested, to get to the appeals... convention?

Mr. Whitman: It depends on the case.

As I mentioned in the brief, if you have a 30-day time limit and he files on day two rather than on day thirty it's faster.

But we have competing values here.

In the UAW system, for example, we've been very careful to insert due process and protections at each stage.

Of course, as the Court well knows, any time you insert due process there is the prospect of litigants generating delay.

If you insist on a complete record being sent from the local union, one has to write a letter to the local union and get the record and be sure it's complete, and so on.

The same thing is true if counsel is allowed, as is the case here--

Unidentified Justice: Does the union permit counsel in this sort of thing?

Mr. Whitman: --Yes, Your Honor.

No question about that.

So, it's not as... timing of these matters is not as simple as it would appear.

There are these competing values and values which, I suggest... which would ruin a case when attempts have been made, and it was a question of the timing.

It's best left to the discretion of the trial bench; I mean, the trial bench is quite able to recognize the situation when the man is being--

Unidentified Justice: Well, I gather you do suggest that the employee says, no, I don't want to take that year and a half to do all this, I want to go ahead with my lawsuit.

What the trial judge then has to permit him to do is still establish, if he can in the suit against the employer, as I heard you, that there had been a breach of the duty of representation?

Mr. Whitman: --An employer could be... yes, Your Honor.

Unidentified Justice: No, I say, you do suggest that the employee who refuses to go through that recourse in part nevertheless may still prove, in the suit against the employer--

Mr. Whitman: Yes.

Unidentified Justice: --The breach of the duty of representation?

Mr. Whitman: Yes, Your Honor.

And if he does prove that, then he has a right under the contract.

Unidentified Justice: So, to that extent, failure to exhaust does not deny him a right to go ahead with his lawsuit, at least against the employer?

Mr. Whitman: That's right, Your Honor.

Unidentified Justice: Then he doesn't have to name the union as a party?

Mr. Whitman: This Court held in Vaca, as I read it, that he doesn't.

In Vaca, in fact, there was a separate piece of litigation pending at the trial court level.

Vaca was only brought against the union.

This can, it can occur in the reverse situation, or it can occur, and it most commonly does, these days, in the Ford v. Huftman context where both are sued.

Unidentified Justice: Dr. Whitman, then, these upper levels of the union appellate process, if I may call it that, that you've described, is the employee very often successful after defeats in the lower levels?

Mr. Whitman: Well, Your Honor, yes, he often is.

In fact, it's ironic that his percentage of success is greater before the Convention Appeals Committee and the delegates than it is before the Public Review Board.

They more frequently reverse the International Executive Board.

If I had to say as a rule of thumb, of the dozen cases that come up every six months, the national department or part of the union is probably knocked down in at least one, perhaps two of those cases, in recent times.

While this, of course, isn't in the record, some years ago I did a count of the Public Review Board decisions that reversed, and it struck me that the percentage was roughly equivalent to the percentage of trial court decisions that are reversed by this Court, if you compare it to the percentage of cases on which there is a petition for certiorari.

The difference is that the Public Review Board can't deny cert. It has to take them all.

Unidentified Justice: But there are thousands of grievances.

Mr. Whitman: Your Honor, there are very many thousands of grievances.

In the General Motors system alone, if my memory serves, there are something like a quarter of a million grievances filed every year.

Unidentified Justice: In this particular company, it shows on this one, doesn't it, that there are 4,000 already... what is it?

this number is 24,060, the number of this grievance.

So it meant that before then, there were 24,000 that were denied.

This is a lot for one company, isn't it?

Mr. Whitman: I don't know, but it's conceivable, Your Honor.

Unidentified Justice: It is?

Mr. Whitman: There is a lot of controversy, and there are a lot of meritorious and, I must say, frivolous grievances in the industrial system.

But that brings us back to the need for a delicacy in this area.

I mean, the duty of fair representation was created by this Court to preserve the delicate balance between individual rights and the collective interest, and to maintain that.

And that's what Vaca and Steele and all those cases hold, and that this is not an area, for that very reason, for sweeping and per se rules, for taking discretion from the district bench and saying that never in any situation must there ever even an attempt be made.

The only thing the Court needs to decide here is whether in the attempt case, the union should be given a fair opportunity?

Now, practically speaking, a couple of things are going to happen.

Given a man, or woman, the grievant, is going to be flatly wrong about his claim under the contract and the union is going to be able to convince him he's wrong and he'll forget about it and go away, well, he won't forget about it; he'll litigate, frivolous though it may be.

And if that happens, it happens.

There's no... I mean, I'm not going to stand here and say that this procedure is going to warranty the federal judiciary against having to see frivolous grievances--

Unidentified Justice: Mr. Whitman, to the extent that's a valid argument, and it's quite persuasive, it should be available to the employer as well.

Mr. Whitman: --Yes, and for that reason, I think, in the appropriate case the district court would be well advised to say to the employer, wouldn't it be nice if at least on an ad hoc basis you are willing to accept this back into the grievance and arbitration case, should the union reverse itself, or hold its hand to see what happens.

Bur it's a frequent practice in the trial bench now that what the Court does is, it enters a stay of the proceedings and tells the fellow to go off and take an appeal, and then sees what happens.

The problem is that Mr. McTernan's position would remove even that authority.

It's a broad position.

What it really is, is going back to Mr. Justice Black's dissent in Republic Steel v. Maddox, which as you know--

Unidentified Justice: It also goes back behind the J. I. Case case, in effect, doesn't it, where the Court said that under collective bargaining you can't have an individual employee contracting separately with the company?

Mr. Whitman: --True.

It goes back that far.

But the proposition is a simple one that's being urged by Mr. Clayton, that a fellow ought to be able to get a lawyer and sue, now, without attempting, without pausing, without asking the higher-ups in the union, without seeing if they remedy his complaint.

Even if the grievant is not wronged by this claim, there may be a greater wrong, a wrong to the collective interest.

And the union and the individual ought to have a chance to address that and see if the man can't be convinced that the union and the rest of his workers will be worse off.

It's like cross-examination.

You're very often in a position where you don't ask a question because you may be worse off asking it and having the answer than never having asked it at all.

And that's often the case with grievance and arbitration cases.

I mean, if we arbitrate a weak case, the employer may find himself armed with an invulnerable precedent for the unceremonious discharge of arguably similar cases.

And that's where this balance of collective and individual interest is important, and it's a scant price to suggest that a man must at least attempt.

Unidentified Justice: Doesn't it pervade all of the labor law of the last 40 years, more or less, that there should be exhaustion of all these intermediate efforts before getting into the judicial process?

Isn't that the whole concept of it?

Mr. Whitman: Yes, Your Honor, and it's the concept for very practical reasons.

We are dealing with an integrated complex industrial system that has wide varieties in contract language and approaches of employers, and internal union procedures, and this matter oughtn't to be decided by a get-a-lawyer-and-sue approach.

The unions of the country ought to be told that they ought to undertake procedures to get their house in order, and the employers ought to be told that they should adopt and consider situations like the General Motors and General Electric approach that puts it back into the--

Unidentified Justice: Well, Mr. Whitman, I don't understand your suggestion in that if the employee refuses to exhaust, that means he can't proceed against the union, but nevertheless he may proceed against the employer.

Why should he?

Mr. Whitman: --If he refuses to--

Unidentified Justice: If he... well, I gather your position is if the... he made no attempt, is what you said.

Mr. Whitman: --That's right, Your Honor.

Unidentified Justice: And having made no attempt, he has no further course of action against the unions.

Then, why, nevertheless, does he have a cause of action against the employer?

Why should he, if the union is to be off, because he doesn't exhaust against the union?

Why shouldn't the employer also be?

Because if he... it may be decided in the exhaustion, if he does exhaust; the union may decide and he may even agree that the union didn't breach its duty at all.

Mr. Whitman: And the problem may go away.

Unidentified Justice: Well, it won't go away if you say that he can proceed against the employer, meanwhile.

Your position is that he doesn't even need to stay the action against the employer.

He just can go right ahead.

And if in the union procedures it's decided that as between the union and this man the union did all that it was supposed to do, why shouldn't the employer be able to take advantage of that?

Mr. Whitman: The prudent course would be to hold the procedures against the employer and in that effort to see what happened, because it's really premature--

Unidentified Justice: All right, let's assume you do, and the union turns him down, and decides that we didn't breach a duty at all and we're not going to go back to arbitration.

That is all, we just--

Mr. Whitman: --Then both the union and the employer will proceed with the suit.

Unidentified Justice: --I beg your pardon?

Mr. Whitman: If the man goes to the union and the union says, you're wrong, and you won't believe you're wrong--

Unidentified Justice: Then the suit goes forward against both?

Mr. Whitman: --As I say, I can't warranty against frivolous litigation or litigation where the union isn't willing to cure a fault in--

Unidentified Justice: Then, I really don't understand, Mr. Whitman, why you can take the position, if he refuses to proceed to exhaust, that lets the union off but not also the employer?

Mr. Whitman: --Well, Your Honor, I suppose the answer is that it will depend on the factual setting and the employer's attitude and what the union will and won't do, and that is best left to the trial bench in their discretion, because situations vary.

Unidentified Justice: Of course, here, the trial judge thought they should both do likewise, is the way it looks.

Mr. Whitman: Yes, Your Honor, they did.

Thank you, Your Honors.

Chief Justice Burger: Mr. McTernan.

ORAL ARGUMENT OF JOHN T. McTERNAN, ESQ., ON BEHALF OF PETITIONER CLAYTON IN NO. 80-5049 AND OF RESPONDENT CLAYTON IN NO. 80-54 -- REBUTTAL

Mr. McTernan: Mr. Chief Justice and may it please the Court:

Mr. Justice Stevens, as I understand it, the duty to exhaust is a requirement which derives from the first proviso of 411(a)(4).

But whether the requirement will be imposed is a matter of judicial discretion.

In the trial court that requirement was imposed on the ground that the union remedy could afford this man money as a complete answer to his entire problem.

And we take the position, I think it's correct, and it follows the policy laid down in Chambers and other cases which we cite, that he may not be required to resort to a remedy that cannot give him the relief he seeks.

And to require him to take money in place of what I concede to be a unique job is certainly to deny him the relief he seeks.

This man had 8-1/2 years' seniority; he was a black worker, in a market area where the black rate of unemployment is twice that of whites, and he's thrown out and lost his 8-1/2 years and he can never regain it.

He has to have, it seems to me, a right to get at reinstatement.

Now, so far, Mr. Chief Justice, as the tradition of exhausting all of these things before resort to court is concerned, I submit to you that exhaustion cannot be imposed arbitrarily and as an empty procedure.

What can he get out of going to the store manager, as Mr. Whitman put it?

He can get from the store manager at best an admission that the store manager was wrong.

And what does that get him?

It gets him possibly damages from the union sometime, after the liability of the employer is decided, but he still has to go to court to get his reinstatement rights determined.

Unidentified Justice: Mr. McTernan, suppose we agree with you about exhaustion, is one of your questions here also that the union should not have been dismissed from the suit?

Mr. McTernan: Yes, sir, that's our point; that is our position.

Unidentified Justice: And why is that?

Mr. McTernan: Our position is that the union procedures were inadequate as a matter of law--

Unidentified Justice: And so you're just entitled to sue them, that's all.

Mr. McTernan: --Correct.

And this is not simply a matter of jump to a lawyer and sue, it's a question of going to a tribunal where you have a chance of getting what you're seeking.

Unidentified Justice: And if you're going to have to prove a breach of representation, you want the union there as a party so you have the advantages of working against the defendant, all the remedies against the defendant?

Mr. McTernan: Exactly.

Unidentified Justice: Discovery and other things?

Mr. McTernan: Exactly.

And if we were to proceed against the employer alone, as the Court of Appeals said to do, and we should win in the trial court, then we'd have to go back and sue the union again for its share of the damages.

Unidentified Justice: But I suppose there is some great advantage to having them as an opponent in the lawsuit rather than as a third-party witness?

Mr. McTernan: Indeed it is, because then we have the right to discovery under the civil rules.

I would like to close with just one observation about the ease of these union remedies.

It isn't simply a matter of writing a letter to Douglas Fraser.

It's a matter of first going to the union local and having that considered, and then going to the International Executive Board through Mr. Fraser.

Unidentified Justice: How much time does all this take, Mr. McTernan?

Mr. McTernan: Well, 45 days... the local union must decide in 45 days.

The International Executive Board is required to use its best efforts to decide in 60 days, and of course each time there has to be a step to get the appeal filed farther up.

The union president, Mr. Fraser, has unfettered discretion to take a case over and decide it himself whenever he thinks it's appropriate, and he is under no time restraint.

The top level, the Public Review Board of the Constitutional Committee is under no time restraint.

And in that connection, Mr. Justice Brennan, I'd point out to you that the counsel for the PRB has said that this appeal structure is designed to produce an effective decision in approximately nine months to approximately 12 months.

Unidentified Justice: This case has been over four years, hasn't it?

Mr. McTernan: This case has been over five years, sir.

And may I point out to you that there are a couple of judicial experiences with this time thing.

In Ruzicka, which is cited very much in my opponent's brief, the employee had gone 27 months fruitlessly without a remedy under the UAW procedure.

And in the Maxwell case we cite to you, the employee had gone 17 months fruitlessly without a remedy.

And I say that, here, Clayton, had he resorted to this remedy, no matter what time it took, it would have been fruitless because he couldn't have got the relief he needs, and that is reinstatement.

Unidentified Justice: Had he gone back for arbitration, how do we know but it might have been settled a long time ago?

Mr. McTernan: Well, he had hoped, sir... sir, he had no way of going back to arbitration.

The union withdrew the case from arbitration and that was the end of the road.

He had to--

Unidentified Justice: It was conceded, unless you disagree with it... that makes it quite different... that he could get outside counsel and go to arbitration.

Mr. McTernan: --Oh, I think what that was addressed to was this, if there were arbitration after this litigation, he might be able to get--

Unidentified Justice: Not after?

Before he started his lawsuit in the district court, are you saying he could not have had arbitration with his own private counsel?

Mr. McTernan: --Mr. Chief Justice, at that point he could have had no arbitration either with the union representing him or with private counsel representing him.

The grievance was over with, dead, and done, and that's stipulated to by all the parties at trial.

Unidentified Justice: Because of the provisions of the collective bargaining contract.

Mr. McTernan: Exactly.

Exactly.

Unidentified Justice: The procedure was exhausted.

Mr. McTernan: Exactly.

Thank you.

Chief Justice Burger: Very well.

Thank you, gentlemen.

The case is submitted.

Attribution:

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American Broadcasting Cos. v. Writers Guild - Oral Argument

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Argument of Norton J. Come

Chief Justice Warren E. Burger: We will hear arguments next in 76-1121 and the two consolidated cases, American Broadcasting against the Writers Guild and others.

Mr. Come, you may proceed whenever you are ready.

Mr. Norton J. Come: Mr. Chief Justice and may it please the Court.

This case is here on certiorari to the Second Circuit which by a divided vote to night enforcement of the boards order against the respondent Union Writers Guild of America West.

Three petitions to review the Second Circuit’s judgment were filed.

One by the Board, one by the three major television broadcasting companies and one by the Association of Motion Picture and Television Producers.

This Court granted the three petitions and consolidated them for purposes of hearing and decision.

I am speaking for the Board and will be followed by counsel for the other two petitioners.

This case presents another facet of the problem which was before this Court in Florida Power decided in 1974.

There the Court held that the union does not violate Section 8 (b) (1) (B) of the National Labor Relations Act which makes it an unfair labor practice for a union to restrain or coerce an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances by disciplining supervisor members for crossing a picket line to perform rank-and-file struck work during an economic strike against the employer.

The question here is, whether a different conclusion is warranted where the supervisor members are disciplined or threatened with discipline for crossing the picket line to perform their normal supervisory duties, which includes grievance adjustment or collective bargaining.

Now, the relevant facts are these.

Respondent, Writers Guild represents for collective bargaining purposes, writers, who prepare scripts for a motion picture and television firms and who are employed by the major television Net broadcasting companies and by various member firms of the Association of Motion Picture of Producers.

I refer to both of them as the employers.

The employers also employ producers, directors and story editors to manage and carry out the production of the films.

The producers, directors and story editors when acting as such, are supervisors as defined in Section 211 in the Act and they also represent the employers in the adjustment of grievances and in certain situations producers also represent the employers in collective bargaining.

Some producers, directors and story editors, known as hyphenates and those are the people that we are going to be concerned with in this case, have writing capabilities and are at times employed as writers to prepare scripts or perform other creative writing functions.

These hyphenates are members of the Guild.

The Guild represents hyphenates only when they are employed as writers, not when they are employed as producers, directors or story editors.

Most hyphenates have personal service contracts with the employers covering their employment as producers, directors or story editors and indeed, under these contracts, they are often represented by other labor organizations.

Thus the collective bargaining agreements between the Guild and the employers provide that a person is not subject to those agreements when he is employed in a non-writing capacity, for example, as a producer, director or a story editor.

The agreements further provide that producers, directors and story editors can perform certain editorial writing services known as “"A through H"” functions without becoming a writer subject to the agreements.

Now, in March of 1973, the Guild began a strike against the employers in furtherance of their demands for new contracts covering writers.

The strike continued against some employers until July of 1973.

A month before the strike started, the Guild distributed strike rules to all union members, including the hyphenates.

In addition to prohibiting writing for struck employers, the rules prohibited all members, regardless of the capacity in which they were working from crossing union picket lines.

The strike rules also prohibited union members from working in the future with members who violated the strike rules.

The Guild through a series of special meeting with hyphenate members and phone calls to particular hyphenates, emphasized that the strike rules would apply to hyphenates working in any capacity and that they would be subject to discipline and black listing if they cross the union’s picket lines.

The Guild also refused to allow any members, including hyphenates to resign from membership before or during the strike.

The employers demanded that the hyphenates continue, notwithstanding the strike in the picket lines to perform their duties other than as a writer under their personal service contracts.

Many hyphenates crossed the picket lines to perform their normal supervisory and managerial functions as producers, directors and story editors, including grievance adjustment and collective bargaining.

They performed no writing work, which would otherwise have been performed by the striking writers.

During and after the strike, the Guild filed the internal union charges against 31 hyphenates for crossing the picket lines, 10 hyphenates were subsequently convicted by union trial committees.

They were suspended or expelled from union membership and were fined amounts ranging from a $100.00 to $50,000.00.

Later, the union membership voted to reduce the penalties of 9 of the convicted hyphenates and proceedings against other hyphenates were held in abeyance, pending the disposition of unfair labor practice charges which mean, were filed by the employers with the Board.

The Board with member fanning dissenting concluded that the Guild violated Section 8 (b) (1) (B) of the Act by disciplining and threatening to discipline the hyphenates for crossing the picket line to perform their normal supervisory duties and the a divided Court of Appeals agreeing with member offending the night enforcement of the Board’s order.

Now, we start with Florida Power, which holds that a unions’ discipline of one of its members who is a supervisory employee can constitute a violation of Section 8 (b) (1) (B) only when that discipline may adversely affect the supervisors' conduct in performing the duties of and acting in his capacity as grievance suggester or collective bargainer on behalf of the employer.

The discipline in Florida Power was found not to have this effect because the supervisors were disciplined for crossing the picket line to engage in rank-and-file struck work.

Indeed the union did not discipline those supervisors who merely performed their supervisory duties when they crossed the picket line.

The Board submits that when a supervisor member is threatened with discipline or discipline for crossing a picket line to perform his normal supervisory or management duties and they include grievance adjustment and collective bargaining, such discipline may adversely affect the supervisors’ conduct in performing the duties of grievance adjuster or collective bargainer on behalf of the employer, even though the union’s motive is not to influence a particular grievance or collective bargaining decision, but merely to secure adherence to its picket line.

There are two reasons for this conclusion.

One is referred to or can be called the deprivation theory and that is this, as the administrative law judge whose decision was adopted by the Board pointed out, if the hyphenates had succumbed to the Guilds’ threats of discipline as many of them did and had refused to cross the picket lines, the employers would have been deprived of their chosen representatives for the performance of management functions, including grievance adjustment or collective bargaining for the duration of the strike, no less and if the union had directly pressured the employers into removing those representatives from those duties.

In short, the effect of the threat of discipline would have been to have deprived the employers of their chosen representatives for grievance adjustment and collective bargaining.

Justice John Paul Stevens: Mr. Come, is it not reasonable to infer that the picket line itself may have had that effect?

Mr. Norton J. Come: That is correct Your Honor.

Where the picket line alone is in the picture and the supervisor decides that he is not going to cross that picket line, the employer is deprived of a selected representative because of the free decision of the supervisor to honor or not to honor that picket line.

However, we submit that where the supervisor honors that picket line as a result of threats of union discipline, the element of restraint and coercion on the part of the union has been added and it is up to the union to disentangle that he would not have crossed, but for that restraint and coercion, and we submit that the union cannot do that.

Moreover, as the Board added by the citation of its earlier decisions in Hammond Publisher and Triangle Publications in so far as those hyphenates who defied the union and were disciplined or concerned there is a reasonable likelihood that the discipline would have a carryover effect and affect the future performance of grievance adjustment and collective bargaining functions because hereon like the performance of rank-and-file struck work, which was involved in Florida Power, the duties, which the supervisors were performing, were similar to the functions that they would be performing absent the strike.

I do not want to cut in any further to my colleague’s time.

They will develop these theories in further detail.

Chief Justice Warren E. Burger: Mr. Keaton.

Argument of Harry J. Keaton

Mr. Harry J. Keaton: Mr. Chief Justice and may it please the Court.

In the time allotted to me, I would like to cover primarily two contentions in this case.

The first one being the contention of the Guild, the respondent herein, that in some ways of work done by the hyphenates, whatever you might call it and they do not call it struck work in their briefs, they call it rank-and-file work without using the word struck, that in some ways, that work, put the work on a pie is a work that this Court held in Florida Power to be of the nature, the Section 8 (b) (1) (B) should not apply.

The second point that I would like to address myself, is that, Mr. Come referred to as a deprivation theory in somewhat more detail.

As to the first point that the three-throng argument being made by the Guild at this point.

It comes down to this.

Number one, while there concededly is no evidence in the court, that any writing of scripts was done by any of the people who were disciplined, they might have done writing.

Number two, that the “"A through H"” functions are to be construed as bargaining unit type writing and number three, that even if the “"A through H"” functions are not bargaining unit writing, they are not managerial functions, and that therefore, the performance of such functions is not akin to grievance related type work, and therefore, the supervisors could be disciplined.

Now, taking the first point, namely yes to whether or not they might have done the right thing, the fact of the matter is that the Guild very well knew or at least very well could find out, whether they were writing.

There were 15 strike rules in this case, which provide specifically prohibition against writing.

Not one of them was invoked by the Guild, not a single one.

One of those rules, rule 8 is very significant because it specified that any writer in order to perfect himself and that includes of course rank-and-file writers, to protect themselves against future charges, should file with Guild his scripts that he had completed at the time of the strike in order to make quite sure that he will be able prove that he had not written during the strike.

The respondent’s exhibit six which is not in the printed transcript which is a multi-colored script it is in the Court, will illustrate to the Court that it is very easy to tell from a script when the final script was written and when the changes were made, and therefore, it would have been quite easy for the Guild to tell whether or not that work was done.

Now, turning to “"A through H",” the Guild analogizes in “"A through H"” to the Shelton Construction Company case, the Shelton Pipeline case, wherein the B representative was held not immune from discipline because he was offering equipment which he had also operated at times when there was a labor shortage, but that case is precisely the opposite from this case because in that collective bargaining agreement, operating equipment was covered by the contract, by so many words, and then the contract said, in the case of an emergency of the purposes of training, a supervisor may operate the equipment not so if you are “"A through H".”

The contract specifically states in sections 1 (b) (1) (A) and in 1 (c) (1) (A), that the performance of “"A through H"” functions by producers, directors or story supervisors, shall not be covered by this agreement and shall not cause them to become writers hereunder.

So, what you really have is not collective bargaining unit work that may be done by supervisors, but work that is not covered by the contract which if you perform it, does not make you a bargaining unit employee, but which conceivably at times could be performed by bargaining unit employees.

But now comes the most important point, namely the argument that “"A through H"” supposedly is not managerial.

Let us examine what “"A through H"” is and if the Court please, I will give examples of it, some of them are in the record and some of them are just common sense.

The first A says, cutting for time.

Now, what does it mean?

It means deleting a portion of a movie or a television play in order to make it shorter, in order to accommodate the time for the screen, that is certainly a managerial decision.

B is bridging.

That means, tying up two pieces of the movie, if you will, due to the elimination of the intervening piece.

C is a change in technical or stage direction.

Need I say more, direction?

D is the assignment of lines to existing characters due to cast changes, directors do not make those assignments, managers do.

E are changes for legal clearances, done by executives at the request of the legal department according, in the transcript, the testimony of Mr. Middleman, pages 1307 to page 1311 at the association exhibit 9.

Now, the casual minor adjustments in dialog covered under F, again there is an example given.

Medical terminology used by a writer, which happens to be erroneous, so they call a doctor, the doctor says the diagnosis is all wrong and they change the name of the illness from one to another, again, done by management.

G are changes necessitated by unforeseen events.

An example is in the transcript at page 204 to 205.

What happened to us, that they had to change the names of streets from New York City to Los Angeles and H finally, by its own language, which is clearly managerial work.

It is instructions, directions or suggestions, oral or written to a writer.

All of this work is about as managerial as it can be and the interesting distinction is that if you take a look at the lowest level of bargaining unit work, namely the so called rewrite that is carefully defined in the agreement, and you can get motion picture credit for doing a rewrite.

You can do all the “"A through H"” in the world without getting any motion picture credit, there is no credit for that, but on a rewrite, that sure is a credit, pages 239 to 240 B and C.

The Writer's Guild contends here as the last resort on this issue --

Justice John Paul Stevens: Mr. Keaton, can I ask my question about the “"A through H"?”

You say it is all clearly managerial?

Mr. Harry J. Keaton: Yes sir.

Justice John Paul Stevens: And you have described it?

Is it also not true that is all clearly managerial work that it has nothing to do with the selection of an agent to do any grievance or collective bargaining?

Mr. Harry J. Keaton: That is not entirely correct Your Honor.

We are not relying on the "A through H" functions at the establishing the 8 (b) (1) (B) capacities of the supervisors, but anyone of the steps taken in "A through H" that I described to you might very well lead to a grievance and indeed a grievance of a writer, because most of them involve scripts to illustrate Your Honor if I may.

Writers have the privilege, in fact the contractual right to watch the screening of the final cut of a movie and if that time the writer finds that the picture did not come out the way he hoped it would, he may very well raise a grievance with the associate producer who made the cuts on the picture and may say to him, I do not like the way you did this ending, you deleted a hundred feet of footage that I had in there which was my beautiful idea and now, it is a sad ending instead of a happy one.

Justice Potter Stewart: Well, Mr. Keaton that is a very, very broad implication in your answer to my brother Stevens.

Any action of any foreman, any time and anywhere in any industry can lead to grievance on the part of the employee and is that the test?

Mr. Harry J. Keaton: No Your Honor, that would not be the test, but if the person who is making the decision also has the authority to adjust that grievance, that would be the test.

Justice John Paul Stevens: So, he does not get that authority pursuant to "A through H", does he?

Mr. Harry J. Keaton: No sir, he does not.

He does it by virtue of his position.

Justice John Paul Stevens: And he adjusts the grievance which he creates by his own --?

Mr. Harry J. Keaton: He might.

He might very well and I might also say that the physical change of a movie in cutting for instance might occur because the editor has made the cut who is a person who is not the hyphenate.

There are hyphenate editors in this case.

Now, to turn briefly to the deprivation theory if I may, I think that the Guild, first of all I think we should dispose of an item if it is of concern at all here, namely the contention of both the Guild and amicus, that there was in some way, nothing that could be brought before this Court own the deprivation theory because it was not part of the Board's decision.

In the court below, in the District Court of Appeals, in its reply brief, the Guild argued exactly the opposite.

At page 4 of that brief, the Guild stated, just as it did the Board’s brief writer, the association seeks to justify the decision below in this case on the basis of the rationale of later decided both decisions.

There was only one basis, upon which a violation was found here, namely, that the Guild's discipline kept the employers from utilizing the services of 8 (b) (1) (B) supervisors during the strike, not as a subsequent decision in other cases, rationalized that the discipline would carry over to the supervisors’ future 8 (b) (1) (B) functions.

The Guild is now arguing exactly the opposite in this Court, that this was not the basis of the Board decision and only the future function about the basis.

The answer of course is both are.

Now, in terms of the question of whether or not the statute was violated here, I do not think we have to get involved with such things as Oakland Mailers because what we really have is the other simple preposition.

We have people who were told, unlike in Florida Power, if you come to work in any capacity, including of course 8 (b) (1) (B) capacities, we will fine you, we will discipline you, we will expel you and you cannot resign, all those things were said and to answer further the question that Mr. Justice Stevens asked of Mr. Come, I do not think that a union can fall back on what might well be a legal picket line, if at the same time that the picket line is up, it is threatening people and coercing people and telling them, if you do cross over a picket line, we will punish you.

Anymore, than this Court would hold illegal, that if a union has gone to an employer and said to him, we would like you cease dealing with another employer that this picket line that was subsequently established would in some way be immunized because the employer may have exited because of the unions’ voluntary request, rather than the illegal secondary boycott under the 8 (b) (4) (B).

I think the analogy is very much the same.

Now, what really have here is very simple.

The union in effect is saying, you must not use these supervisors.

It means we eliminate the supervisors.

They cannot be designated.

If they cannot be designated, you have a clear violation of the statute itself and you have the violation, just as surely as the union had put up a picket line to prevent the hiring of a supervisor or the use of a designated representative of the employer for purposes of collective bargaining.

It is precisely the case of Congress was talking about in the legislative history.

Senator Taft, I believe said, do not send us Mr. Y and send us Mr. X, Mr. Y as being excluded in this case.

The union will argue, they could resign, in fact the AFL-CIO does, not so.

They were not allowed to resign.

In fact, they were deactivated, and the decisions of this Court aim on the 8 (b) (1) (A) and I recognize 8 (b) (1) (A) is not applicable because the supervisors are not protected, but the decisions of this Court under 8 (b) (1) (A) themselves indicate very clearly that even there discipline would not be lawful if there is not any right to resign at some point.

Since I want to reserve a little time for a rebuttal for Mr. Come, I would like to conclude on a couple of points.

By deactivating and keeping the supervisors as (Inaudible) members in effect the employers were being given two choices.

Either, do not use the supervisors during the strike, in other words, do not designate them as 8 (b) (1) (B) representatives and there was plenty of work going on, the record is full of it, scripts were being written and scripts were available, scripts have been finished, there are lots of them in the record and no other union must strike, either, do not use them during the strike or if you do, we are going to expel them, find them, and punish them and you will never be able to use them again because nobody will work with them and you cannot be a producer without the writers.

Those were the choices given in effect to management and the other point I wanted to make is that the only way that the decision of the Court of Appeals can be sustained is this Court were to ask to the statute the provision, this Section shall be inapplicable in the event of a strike.

Thank you.

Chief Justice Warren E. Burger: Very well, Mr. Keaton.

Argument of Charles G. Bakaly

Mr. Charles G. Bakaly: Mr. Chief Justice and may it please the Court.

I would like to say one thing about the "A through H."

It is clear that "A through H" was not struck work.

Struck work, is work which would have been done by the bargaining unit employees, but for the strike.

The "A through H" work is never done by the employees.

It is done only by the producers, the associate producers and the story consultants and so forth.

So that, it is clear that "A through H" cannot be struck work.

I would like to talk a moment about it.

Justice Potter Stewart: But it is not equally clear that it is not itself either a collective bargaining or the processing of grievances?

Mr. Charles G. Bakaly: Well, I would agree.

Justice Potter Stewart: Not in and off itself?

Mr. Charles G. Bakaly: I would agree what Mr. Keaton said about that, but the authority for grievance handling and collective bargaining is in the record apart from "A through H."

Justice John Paul Stevens: But "A through H" activity is a bridging or amending to meet the legal department’s objections or cutting or whatever, it is not collective bargaining or the processing of grievances, in and off itself?

Mr. Charles G. Bakaly: In and off itself, I would agree with that.

Now, let me talk about the adverse carryover theory of the Board for liability of the union in this case and that theory started with Florida Power.

In Florida Power, the Court said, a union discipline of one of its members who is a supervisor employee can constitute a violation of 8 (b) (1) (B) only when that discipline may adversely affect the supervisor's conduct in the performance of the duties of and acting in his capacity as grievance suggester or collective bargainer on behalf of the employer.

Now, that is where we start and in this case, we have tremendous conduct on the part of the Guild which Judge Moore in the Second Circuit characterizes in terrorem conduct to adversely affect the supervisors in the future.

Not only, are we talking about the fines of up to $50,000.00 or the threats or the refusal to accept resignations, but more importantly, they blacklist them and to understand the effect of that on an associate producer or a producer whose whole livelihood is because he gets the right creative people to work with him, that if he wants a writer to work for him in the future in another production and he understands that because of what he does now, that writer is not going to work for him, that blacklisting threat has a tremendous effect on the producer in the future.It has an effect upon the director.

It has an effect upon all of these hyphenates and his conduct, to say that this kind of conduct does not engender fear in that supervisor, so that in the future when that union or any other union says to him to do something that the union wants, he is going to think that if he does not do what the union wants, he is going to have that same kind of punishment again.

This adverse effect, certainly affects supervisors who in fact adjust writers grievances and we have evidence of some of the supervisors adjust writers grievances.

It would affect supervisors who adjust grievances of other employees like directors because people do not just think about one union and what it does.

What one union can do another union can do and if the Writers Guild can cause writers not to work with an associate producer then the Directors Guild can cause Directors not to work with an associate producer and the director is very much concerned with that.

There is one bit of testimony in the record that just cries out, and Mr. Crichton who was talking with Mr. Furia, the leader of the Writers Guild and the President of the Writers Guild and Crichton is saying “I told him finally that if push came to shove, I would be rather be thrown out of the Writers Guild than the Directors Guild since I felt my future was really more with the Directors Guild” and he explained it was not that simple.

If I were expelled from the Writers Guild I could not work as a Director in the future, work solely as a director because members of the Writers Guild could not work as Directors and me as a director if I have been thrown out of the Writers Guild.

That kind of threat has to have an adverse effect in the future and that adverse effect, that carryover effect does pertain to the selection of the representative for grievance handling and for a collective bargaining.

So, not just a question of identities the Guild would have.

What an employer wants, he wants the supervisor who will do what he says.

He wants a supervisor that will be tough with the union perhaps, if that is the way that particular employer wants, while the union buy this kind of discipline and threats can change that supervisor from a tough supervisor to a supervisor that agrees with the union and then they are in effect changing the identity.

Employers do not really care whether a supervisor has a black hair or red hair.

They do not care about that.

They care how he is going to perform with the union.

Justice Byron R. White: Did the Court reject this theory in the Florida Power or not?

Mr. Charles G. Bakaly: The Court of Appeals, the Court in Florida Power, no.

I do not believe they --

Justice Byron R. White: The carryover theory?

Mr. Charles G. Bakaly: No, in fact I believe that is where the theory was originated from the language that I said Mr. Justice White, you were in the dissent in that case, but the majority did definitely state that plan, the discipline may adversely effect.

They are talking about the future there and that is the carryover effect.

That was not rejected by the Court in Florida Power.

Finally, one of the arguments that is relied on a great deal by the Guild is the argument that after Florida Power the loyalty of the supervisor member to its employer is irrelevant and without merit.

And that language comes from the Court that says that it has a statement in Florida Power about loyalty not being a part of the remedy that Congress intended for the solution of the conflict over all these problems.

Now, assuring loyalty is really one of the only purposes for 8 (b) (1) (B), why else would the Court put in 8 (b) (1) (B), why would the legislature put in 8 (b) (1) (B)?

It is perfectly logical to have grievance handlers as the most senior person.

Why not let the bargaining decide that?

Well, the reason has to be because as I said earlier, that one of things that an employer wants other than competence and an articulate supervisor perhaps, but he wants the one who is loyal to him.

He wants the one that will do what he wants done in the handling of grievances in the collective bargaining, so the loyalty is still a part of 8 (b) (1) (B).

Now, the respondent says that the only solution is to keep supervisor that has the union.

That solution really proves too much as the Court, as the Court again said there are instances where a supervisor does or a union does violate 8 (b) (1) (B) by adversely affecting the supervisor’s conduct.

Now, the Court in Florida Power recognizes that there can be a situation where a supervisor member is threatened, is disciplined and that adversely affects his conduct.

We submit that this is that case.

With this kind of in terrorem conduct that Judge Moore said certainly these supervisors would be adversely affected and these employers would be deprived of their grievance handlers and collective bargainers and I would reserve the rest of time for Mr. Come's rebuttal.

Thank you.

Chief Justice Warren E. Burger: Very well. Mr. Reich.

Argument of Julius Reich

Mr. Julius Reich: Mr. Chief Justice and may it please the Court.

From this Court’s statement in Florida Power that the conduct in a case called Oakland Mailers was without the outer periphery of what the Labor Board could proscribe or maybe at the outer periphery what Labor Board could prohibit.

Justice Potter Stewart: We just assume that.

Mr. Julius Reich: That is right.

Justice Potter Stewart: We may assume without deciding?

Mr. Julius Reich: It may have been out of the periphery.

Justice Byron R. White: Or within the outer periphery?

Mr. Julius Reich: It may have been within, but from the fact that this Court said that it may be within the outer periphery, the Labor Board has drawn a conclusion that it was approved by this Court.

I thought it was questionable.

Justice Potter Stewart: It was permissible for the Board to conclude within that language that it was within it?

Mr. Julius Reich: But what it is done from that Mr. Bakaly said that we have to start with Florida Power.

What the Board has done is end it with Florida Power.

What they have done is they taken Florida Power and limited it to its exact facts and that is all.

They have taken a statement which says that supervisors may be disciplined for performing struck work and ended it there without any regard to this Court's rationale for the decision, without any regard for the legislative history, without any regard for the statutory language and all of that went to show that 8 (b) (1) (B) had a specific purpose.

It was directed at curbing union interference with the selection by an employer of his representative for purposes of collective bargaining or adjusting of grievances.

Now, this Court made an extensive survey of the legislative history in Florida Power and the Board neither in this case nor in any of the cases that fall in Florida Power has gone to the legislative history to see where Florida Power should lead.

In fact, what this Court said and what the legislative history showed, is that while employers may have certain expectations from their supervisors, unions too have certain expectations from their members despite the fact those members may also be supervisors and in order to give the employers some relief from this conflict of loyalties, to help the employers to resolve this clash of expectations, Congress in 1947 simply took supervisors out from the under provisions of the Act by Section 23 and also absolved employers from the necessity to deal with supervisors or their representatives bargaining for them.

Justice Potter Stewart: And conferred upon employers the absolute right to have supervisors who are not union members and not to hire any supervisors who are union members, is that not correct?

Mr. Julius Reich: That is right.

The employers thus have at this point the ability to make their own decision to have their Supervisors not be members of the union, does not subject to that discipline.

Now, the Board has come up with two theories in support of decision in this case.

One of them is the deprivation theory in which the Board says that if a supervisor has an 8 (b) (1) (B) functions, that is he has the right to bargain collectively or the right to adjust grievances then it is sufficient if the union deprives the employer of the services of that supervisor regardless of the fact the supervisor is not performing 8 (b) (1) (B) functions while he is at work.

Now, with respect to those who were actually disciplined in this case, those were exactly the people who worked.

The employers were not deprived of the services of those persons, so they clearly were not restrained and coerced in the designation of those people who worked.

The Board to overcome that in its replied brief says yes, but they maybe afraid in the next strike to work and the employers will be restrained and coerced in the designation of their supervisors in the next strike, and therefore, it is a violation of the act, but the clear answer is that they can ask those supervisors to resign before the next strike comes up.

Justice William H. Rehnquist: Mr. Reich, is it fair to say that the argument you are now making really -- you are not helped much more in it by a Florida Power and like than your opponents.

You are saying that Florida Power went off on a fairly narrow ground and you want to get back to a broader ground?

Mr. Julius Reich: I think that is correct Your Honor.

I think that the language in Florida Power is helpful to our position and the position is that we have done nothing to interfere with the selection of the representatives for purposes of collective bargaining and there is nothing in either of the two Board theories which establishes that their would be a violation in this case.

Justice Thurgood Marshall: But what about Mr. Bakaly’s point that this man wants to progress up the ladder, he is in trouble in the future?

Mr. Julius Reich: Well, that man which Mr. Bakaly mentioned, Mr. Crichton is one of people who is working.

So evidently the threats did not affect him and in the appendix at the 8296, Crichton is one of the persons who was charged with a violation of the Act which indicates that he in fact did work.

I assume that that is the point that you are getting at, that is that --

Justice Thurgood Marshall: No, the point is that if he does not participate here to the full extent that the Guild wants him to then if he is promoted to another job, he still can hold that job because the members of the Guild below him will not work with him, I though that was his problem?

Mr. Julius Reich: Okay, you are talking about the blacklist.

Well, that is inherent in any situation where an employee becomes a scape and fellow employees may not wish to work with him.

Justice Thurgood Marshall: Why is that disconnect with him on the right to employ him in a better job?

Mr. Julius Reich: Well, it has no connection.

First of all the rule was rescinded during the strike.

So that there was no such mandatory rule.

An announcement was made that people can deal with him as they wish just to as in any strike situation, if a person crosses the picket line they suffer perhaps the enmity of their fellow workers, but if that is discipline then this Court has held in cases dealing with the reasonableness of the discipline by unions that, that is a matter for state court concern.

They certainly could have gone to a state court and get a declaration that, that discipline should not be erased from the record.

So we are not really concerned at this point with the reasonableness of the discipline and if it is not a violation of the Act to begin with we do not have to get in to the question of whether or not the discipline was reasonable or unreasonable.

Justice John Paul Stevens: Mr. Reich, could I go back to a point you made just a moment ago.

You, if I understood your argument correctly, you said that the discipline may have been ineffective because some of the people went to work anyway and may have been presumed they have gone ahead and done, performed their collective bargaining function (Inaudible) there could be no violation.

I find that argument, unless I missed something, I find it totally unpersuasive.

Supposing they blatantly said we will find you a $50,000.00 if you go into the plant and adjust the grievance or engage in collective bargaining and the fellow went ahead and did it anyway.

He was not deterred.

That could be a plain violation, would it not?

Mr. Julius Reich: Well --

Justice John Paul Stevens: And how can you test it by whether the man is in fact deterred by the coercion or not.

The test has to be whether there is coercion, does it not?

Mr. Julius Reich: That goes to the second theory of the Board, the carryover theory.

Justice John Paul Stevens: Well, I thought we are talking about the deprivation theory?

Mr. Julius Reich: That is right.

Justice John Paul Stevens: For which you agree the argument has no merit with respect to the deprivation theory?

Mr. Julius Reich: As far as the deprivation theory, the supervisor is there.

Now, if --

Justice John Paul Stevens: Well, what is your answer to my question?

Mr. Julius Reich: If the threat of a fine against -- well, first of all my answer is that I would concede that the person who is going in, who crosses a picket line for the purpose of adjusting grievances, the representative who goes in to perform those functions that are listed in 8 (b) (1) (B) may not be disciplined by the union.

It is restrain and coercion on the employer to deprive --

Justice John Paul Stevens: It is restraint even though the in fact goes in and performs those tasks?

Justice Byron R. White: You know it is unsuccessful, in other words?

Mr. Julius Reich: Even though the threat is unsuccessful?

Justice Byron R. White: Yes.

Mr. Julius Reich: Yes.

I would say --

Justice John Paul Stevens: So, we cannot measure the violation by the success or lack of success of the coercion?

Mr. Julius Reich: Well, I am only repeating what the Board’s theory is.

The Board takes the position in its reply brief that while the threat of discipline did not deter these people who actually went in and performed their services, and therefore, the deterrence theory does not apply in this strike as to them.

The Board takes the position that in the next strike, they will be deterred from going across the picket line and that is how the deterrent --

Justice Byron R. White: Well, not only the next strike, but just in the future in the ordinary course of conducting their collective bargaining and adjustment of grievance functions duty?

Mr. Julius Reich: Well, now that goes to the carryover theory.

Justice John Paul Stevens: Well, I still do not understand what your response is to the Board’s argument.

You have identified the Board’s argument and you said well they really want to work, but then you have admitted that is not a response.

What is your response to their deprivation theory?

Mr. Julius Reich: I am sorry.

If they are at work regardless of the threat or fine it would be my position that the employer has not been restrained and coerced under the deprivation theory.

The Board may have a good argument, if a supervisor is told that he will be disciplined for performing 8 (b) (1) (B) functions, the Board may have a good argument to show that he will be restrained and coerced or the employer will be restrained and coerced with respect to this supervisor.

Justice John Paul Stevens: Would this be another way of stating your theory that under deprivation theory, the Board should have made a finding that somebody was in fact deprived from going to work, that there is an absence of a critical finding?

Is that really what you really are arguing?

Mr. Julius Reich: There was sufficient evidence that people did go to work despite the threat and they have adjusted grievances while they were there.

We have examples of stunt people and actors whose grievances were adjusted.

Justice John Paul Stevens: Well conversely there is no finding there that but for the discipline, somebody additionally would have gone to work and adjusted some grievances he never adjusted?

Mr. Julius Reich: There is no such finding.

Justice John Paul Stevens: Is that not your real argument, it improved the deprivation, prove actual deprivation?

Mr. Julius Reich: But one point that I want to make is that if a particular individual would have crossed the picket line for the purpose either wholly or primarily of adjusting grievances and collective bargaining then it would be a violation in our view if the threats kept him from going across the line, but we do not have any such case here.

There is no finding and there is no evidence to that effect.

Justice Potter Stewart: In short, your short answer to the deprivation argument is there was no deprivation?

Mr. Julius Reich: That is right.

Thank you, Your Honor.

The Board says though that the threat may have kept people out and that is a violation.

There was no evidence in this case of anybody who was being asked to go across for the purpose, either in whole or primarily of performing 8 (b) (1) (B) functions and the Board’s position, the Board’s answer to that is that so long as the employer invests his representative with 8 (b) (1) (B) functions, any work that the representative does, any supervisory work, any work short of doing rank-and-file struck work, any work that the employee would have done would be work which according to the Board, if as a result of the threat, the supervisor refrains from crossing picket line to perform his normal supervisory functions, the employer without more is deprived of the representative he has selected for collective bargaining or grievance adjustment purposes.

Now, what this does is to simply make a shambles of what this Court carefully told the Board it should distinguish.

The distinction between Section 211 functions which has supervisory functions and Section 8 (b) (1) (B) functions which are representative functions.

There is a difference between a representative as that word is used in Section 8 (b) (1) (B) and a supervisor and the Board simply meshes them.

Now, Congress could have simply said in 8 (b) (1) (B) that the union shall not restrain and coerce an employer in the selection of his supervisor and then the Board’s theory would make sense, but it did not do that.

It specifically said a representative, a representative for only two purposes and this Court recognized that in footnote 21 of the decision in Florida Power, may declare that there is a distinction between the two and there is only one function that of adjusting grievances which overlaps between Section 211 and 8 (b) (1) (B) and the Board’s argument proves too much.

There would be no basis upon which, if the Court accepted the Board's argument, that somebody with 8 (b) (1) (B) functions went to work and part of his work was that of doing rank-and-file struck work, the Board would have to say in those circumstances that the union cannot discipline him and cannot keep him from going to work because a person with authority to adjust grievances is being kept out of the plant and that would apply in the Florida Power situation just as it would apply in our situation.

We have a case of the tail wagging the dog here.

The result is, what the Board says is that all the employer has to do is designate a person as its representative and that person can freely go through the picket line and disavow his obligations to his union despite the fact that he never adjusted a grievance.

We have an example at page 132 of the appendix for example of a person who has asked of one of his supervisors, who was asked, do you adjust grievances and he said I have the authority.

Well, can you give me an example and he said I cannot think of one.

In the last few years we have had not any disagreements, but that person would be entitled to a protection under the Board’s theory just as well as somebody who is there for this specific purpose of adjusting grievances.

Justice Potter Stewart: You do not claim that the work performed by these supervisors who did cross the picket line during the strike was struck work?

You claim that it was a rank-and-file work, is that it?

It was not limited to struck work as was the work in Florida Power, is that fair to say?

Mr. Julius Reich: Well, if by struck work you mean work which would have been performed by --

Justice Potter Stewart: By other people not by these people?

Mr. Julius Reich: There was work of the type that might have been performed.

We do not know.

For example, well, I have given examples in the brief of the types of work, polishing a script for example, that is considered to be "A through H" and which is done equally by writers as well as these hyphenates.

Justice Potter Stewart: Well, maybe some of struck work, some of them was not, but it was not confined to struck work?

Some of it was done that would not even have been done except by these people?

Mr. Julius Reich: They were doing normal producer work, normal director work.

Chief Justice Warren E. Burger: How do you categorize the changing of the script which either omits a substantial part or changes the thrust of a substantial part, you regard that as managerial or partly writing function?

Mr. Julius Reich: It is writing but --

Chief Justice Warren E. Burger: Well, of course it is writing, but that does not exclude a management decision, does it?

Mr. Julius Reich: No, but a writer can do that also.

A writer can --

Chief Justice Warren E. Burger: Well, we can pursue that at 1 o’clock.[Recess]

I should say that Mr. Justice Brennan is unavoidably detained.

He will be absent for part of these arguments, but he will participate on the basis of arguments, briefs, and tape recording of the oral argument.

You may precede counsel.

Mr. Julius Reich: Thank you Your Honor.

Your Honor asked as we departed whether the "A through H" work was managerial work or rank-and-file work and in our view it is immaterial, it is not relevant which it was.

The fact is that it was not 8 (b) (1) (B) work and the unions are prohibited by Section 8 (b) (1) (B) only from disciplining persons because of their performance of 8 (b) (1) (B) work.

Now, we concede that a supervisor may not be disciplined for the performance of 8 (b) (1) (B) work and the question is whether the threat of disciplining this --

Chief Justice Warren E. Burger: By that you mean, we included hyphenated supervisors?

Mr. Julius Reich: Any supervisor who is called upon to do 8 (b) (1) (B) work, hyphenate or a story editor or anyone.

The supervisors were threatened with discipline for crossing the picket line and the question arises as to whether or not that threat kept the employer from having present persons with 8 (b) (1) (B) functions.

Our reading of the threat to discipline persons if they cross the picket line in light of the minimal amount of 8 (b) (1) (B) work that they had to perform, the example that I gave of somebody who said that it had been years since he could think of an 8 (b) (1) (B) function that he performed, the impact on a person who receives a threat is not that he is going to be disciplined for performing 8 (b) (1) (B) duties, but they are going to be disciplined for crossing the picket line for performing non-8 (b) (1) (B) duties and there is no finding here in this record that anyone was threatened for the performance of or because he did perform 8 (b) (1) (B) duties.

To conclude, the networks in this case, both in their opening brief and their reply brief had made no secret of what the case is about.

What they are trying to do is to get this Court to give to them an advantage that they were unable to secure through Congress and the Court should not do.

Thank you.

Chief Justice Warren E. Burger: Mr. Gold.

Argument of Laurence Gold

Mr. Laurence Gold: Mr. Chief Justice and may it please the Court.

In Florida Power & Light Mr. Justice Stewart noted that the Board’s view of Section 8 (b) (1) (B) had evolved to the point that it served as a “general prohibition of the unions, disciplining supervisor members for their conduct in the course of representing the interest of their employer.”

I suggest that as Mr. Come made quite clear, the Board has continued to hue to that view with one exception.

They now say that in a situation in which the supervisor member performs a substantial amount of rank-and-file work, some of which is struck work that the union can discipline the supervisor.

We suggest that that analysis is no more responsive to the statute and its legislative history than the broad position taken before this Court the last time this question was here because as Mr. Reich indicated, at the end of his argument, it is our position that assuming that Oakland Mailers is correct, namely assuming that the Section does not simply protect employers against strikes against them, but protects supervisors against discipline for performing certain functions for the employer.

Section 8 (b) (1) (B) is given the full scope that it can possibly be given so long as it is a violation for the Union to discipline the supervisor for performing 8 (b) (1) (B) functions or because of the way he performs those 8 (b) (1) (B) functions, but that the union has a privilege which Congress did not choose to take away of disciplining supervisor members for performing any non-8 (b) (1) (B) functions.

We think that line is that so long as the cause is the way the supervisor performs his 8 (b) (1) (B) function, assuming as I said that the Oakland Mailers is correctly decided, the Union commits a violation, but that if the union’s discipline is based on the way the supervisor performs other supervisory duties or rank-and-file duties or the fact that it crosses the picket line and thereby tends to undermine the strike, that is outside the prohibition of this unfair labor practice.

At that point, the employer’s option, again to quote from Florida Power & Light is to force the supervisor to resign from the union, thereby protecting his interest and we think that the source of this understanding is basically on three different facets of the Act and its legislative history.

First of all, Section 8 (b) (1) (B) is far narrower than Section 211.

Section 8 (b) (1) (B) protects employers in their selections of grievance handlers and negotiators whereas Section 211 defines supervisors far more broadly.

Both Sections came into the law at the same.

If congress wanted to prohibit unions from disciplining supervisors, it would have written 8 (b) (1) (B) to say that is unlawful for union either to discipline supervisors or unlawful for union to restrain or coerce an employer in the choice of his supervisors, simply said neither of those things.

Secondly, the legislative history indicates that this provision created no stir in what was otherwise as this Court again has noted time and again, one of the most though for legislative conflicts of the post war period because of the assurance of its sponsors that it had a narrow scope and that scope basically was to prefect the collective bargaining process by assuring that the union was not on both sides of the table in both selecting its own representatives and selecting or having a voice in the selection of the employer representatives.

The more difficult and controversial issue of whether to restrict the right of supervisors to be union members was solved through Section 14 and 211 and 23 in favor of giving the employer a privilege to keep supervisors out of unions, to fire supervisors who joined unions and to refuse to bargain with unions about supervisory units, even where the union had majority support in the union, thereby reversing the decision in the Packard Motor Company case.

It is not surprising I would contend that the sponsors of 23, 211 and 14 did not choose to give supervisor members protection in law against discipline as supervisors because they were at the same time stripping those supervisor members of all legal protection vis-a-vis the employer.

I think that we of course have deferred with many aspects of Taft-Hartley, but Senator Taft was not the type of man who would carry water on both shoulders at least that blatantly.

Justice Byron R. White: What if a supervisor, a member the union and as a supervisor crosses the picket line does a non-rank-and-file work and the employer asks him or designates him to do grievance adjustment, and he says no I would not do it, I would be fined and the employer says well I guess I must get somebody else and he said yes, you must get somebody else.

Now, with your argument still go?

Mr. Laurence Gold: Yes.

In other words we -- may I ask a question about that because under our position, we could not discipline him for handling the grievance.

If it would have occurred the other way, we could discipline.

In other words, he goes to work and the employer says --

Justice Byron R. White: No, but he says I will not do it because I just would not do it because I am --

Mr. Laurence Gold: I would be subject to discipline.

I will not do supervisory functions or I will do rank-and-file work.

Justice Potter Stewart: I will not do collective bargaining or grievance proceeding?

Justice Byron R. White: I will not handle any grievances because --

Mr. Laurence Gold: Because I will be disciplined?

Justice Byron R. White: Yes.

Mr. Laurence Gold: If the union disciplined him for handling the grievance that would be a violation of 8 (b) (1) (B)?

Justice Potter Stewart: That is not quite my Brother White’s question?

Mr. Laurence Gold: Well, that is why I asked because I am not sure, I understood it.

Our position is that a supervisor member crosses a picket line, he does work what we are calling Section 211 work, but it is not handling a grievance, our position is the union can discipline.

Justice Byron R. White: Well, he crosses the picket line and he does supervisory work, but when the employer -- and then he tells the employer “by the way I have been doing grievance work for you, but I am not going to do any” and I will get fined?

Mr. Laurence Gold: Well, the union cannot fine him in our view for handling the grievance.

It could fine him but doing the supervisory work other than handling grievances.

Justice Potter Stewart: Now, Mr. Gold, I do not remember and I do not have before me your briefs.

In Florida Power & Light, that is the respondent's brief, but it is asserted in one or more of these briefs, if you took the position in that case that supervisors who cross picket lines to perform 211 work could not legally be fined by the union?

Mr. Laurence Gold: We did not take that position.

I have gone back over the AFL-CIO brief and we simply did not even address it.

In the union’s brief, the IBW’s brief, they argued first at Oakland Mailers itself was wrong, but even assuming that it was right, the union could fine those individuals who crossed the picket line and did rank-and-file work.

They limited their argument that way because under their internal union rules they did not choose to discipline supervisors who did not do struck work.

So that was the only issue they posed.

Justice Byron R. White: Well, those are facts of that case?

Mr. Laurence Gold: Yes, the facts of that case where that the union fined people for doing struck work.

Justice Byron R. White: Right.

Mr. Laurence Gold: But --

Justice Byron R. White: But it is asserted in the present case, in the briefs that the position was taken by at least one of the respondents in that case that the unions could not permissively discipline those who cross picket lines in order to perform what you called 211 work i.e. just general supervisory work, performance work?

Mr. Laurence Gold: All I can say is that first of all in support of that statement they quote a portion of the transcript in oral argument of the counsel for the union and he said that even assuming that Oakland Mailers is correct, unions can fine individuals for performing struck work.

I do not regard that as a concession.

Secondly, I have gone over our brief and what they do is tax us for saying that by arguing the issue presented by that case, namely whether unions can discipline supervisors for doing struck work, we were taking the opposite position on 211.

Justice Byron R. White: Well, lawyers to lawyers and that was the different case.

You were not trying to win the case. Now, you are trying to win this one?

Mr. Laurence Gold: Right and we believe that the theory of your opinion in Florida Power & Light supports our attempt to win this case, but we do not argue that we have already won this case by reason of that opinion.

We are arguing that the rationale particularly a point made in your opinion that 8 (b) (1) (B) is narrower than 211 and that the overall problem of assuring that supervisors are loyal in performing non-8 (b) (1) (B) functions supports our view here.

If I may, since it being through our interest, I am going to quote you extensively.

I would like to point out that --

Justice Byron R. White: That was a Court opinion?

Mr. Laurence Gold: Yes.

Justice Byron R. White: It was a Court opinion, it was not a separate opinion?

Mr. Laurence Gold: Right, I want to quote another Court opinion that you are also the author of it, that is all I want to say.

We think that the 8 (b) (1) (B) situation here is very much like the 883 case presented in American Ship Building.

There, as here, you had a situation where Congress left something to employers, namely the right to discipline even union members so long as the basis for the discipline was not their union activity and on the other hand, Congress in 883 made it unlawful to discipline a union member for union activity.

And the Board, of course read 883 to create a prophylactic rule that an employer could never lock out, and the theory of that court opinion was that where Congress leaves the privilege on the one hand and creates a prohibition on the other, the Board can prohibit activity motivated, wrongfully motivated, but cannot prohibit all of activity which has adverse effect on the ground that that is necessary.

And I would suggest that here too, if Oakland Mailers is correct, the Board has moved to protect the supervisor in performing 8 (b) (1) (B) functions to assure that a union cannot discipline the supervisor for the way he performs that function or for the fact that he is performing to go the next step and say it is necessary or else, employers will believe, I mean that supervisors will believe that they can be disciplined for 8 (b) (1) (B) functions to assure that they are not disciplined for anything.

We believe it is impermissible because we think that it cuts into the privilege that Congress left which was to fine or otherwise discipline supervisor members for activities other than 8 (b) (1) (B) functions and that is why we believe that both they so called carryover theory and the deprivation theories are unsound.

The Board has a direct method of protecting supervisor members who are disciplined for performing 8 (b) (1) (B) activities, that is to make it an unfair labor practice to so discipline it to say that in order to protect them you must go one step further and assure that they can be disciplined for anything.

It seems to us to disregard the limitations that Congress observed when they wrote the section and to go back to the general view that the Board has espoused all along, making only the narrowest adjustment for Florida Power & Light.

Justice Byron R. White: Well, assume as supervisor has been performing the bargaining functions along with his supervisory duties and the strike comes along and he is a member of the union and the union says do not cross the picket line, he says well, I really ought to do, I have lot of work to do, they say, well, we will fine you, so he stays away.

The employer calls him up and says I got a lot of bargaining for you to do over here and he says, I am awfully sorry, but I will be fined, you better get somebody else and you would still say that, there is no unfair labor practice?

Mr. Laurence Gold: No, I would not.

Justice Byron R. White: That?

Mr. Laurence Gold: I would not.

Justice Byron R. White: Oh! You would not, so you can -- so --

Mr. Laurence Gold: I apologize.

Justice Byron R. White: Well, if he has been performing the bargaining duties and the union wants to fine him from going to work, there is an unfair labor practice?

Mr. Laurence Gold: That is right, if he comes to the union or the employer comes to union and says this man is going to perform --

Justice Byron R. White: He said he is going to do his usual job.

He is going to do supervisory duties and he is going to do his bargaining?

Mr. Laurence Gold: The union can fine him for doing the supervisory --

Justice Byron R. White: Well, he just says, I will come to work, but I will only do my bargaining?

Mr. Laurence Gold: That is right.

That is where the --

Justice Byron R. White: Well, the employer says, well I cannot pay you for that.

You come to work or not, so he is going to get somebody else one way or another?

Mr. Laurence Gold: Well, he may have to get some somebody else, but that will be his choice because of the fact that the union cannot exert discipline on the supervisor for doing non-8 (b) (1) (B) work.

It will not be because the union is transgressed the limitation.

In terms of the hypothetical you posed, if there is a situation in which the employer says to a supervisor, I got struck work that has to be done during this strike and if you would not come here and do it in addition to doing the adjustment of grievances or bargaining, I am going to fire you and the supervisor says I will not do that because I will be fined by the union.

We think the minimum that Florida Power & Light means is that the union has not committed a violation and we do not think that 211 work is any different from struck work.

Justice Byron R. White: But in either of them if the employer said, well, just come and do your bargaining?

Mr. Laurence Gold: It would be a violation for the union to fine the man.

Unknown Speaker: Are we in a rather unreal situation in this?

Who is going to do with any bargaining or grievance procedure when the employees are in strike out there?

Mr. Laurence Gold: I think that in a real world the employer arguments and the Board arguments are most unlikely, but all I am saying is that --

Unknown Speaker: Because we are hypothesizing a strike when the ordinary employees are not there, there is nobody to file a grievance, is it not?

Mr. Laurence Gold: I would --

Justice Byron R. White: There is only one union on strike?

Mr. Laurence Gold: I would think it is very rare.

I can think of some situation.

One suppose the employer get strike breakers.

Now, it is unlikely that he will handle their grievances, but he may.

In that situation if he wants to have his trusted supervisor handle those grievances, we think we would violate the law --

Justice Thurgood Marshall: Well, there has been a grievance with another union?

Mr. Laurence Gold: Or in this case there were grievances with other union.

Those are possibilities, remote possibilities, we are not arguing that our theory --

Justice Byron R. White: Which happens to be in this case?

Mr. Laurence Gold: Well, they did not fine, so far as anything the Board has said, people were not fined for performing those functions, indeed the Board said it was illegal.

Justice Byron R. White: But if any supervisor has stayed away because of the fine, he would no longer be available to do any bargaining for the employer?

Mr. Laurence Gold: The poses the question of fact that Mr. Reich was arguing and responding to the Chief Justice’s question.

It may be that the union’s threat here can be read as going beyond what it could properly do.

We do not think that is a fair reading under the circumstance, but that maybe, but that does not justify the Board’s theory because the Board finds that it is an unfair labor practice to discipline somebody who does not touch a grievance and that we say is beyond the pale.

That is what the Board was not given the right to do.

We do not believe that supervisors got caught blash from union discipline when their union members, we think that they got protection for these collective bargaining related functions and nothing else.

Justice William H. Rehnquist: What is your position Mr. Gold as to burden of proof?

Supposing that a supervisor simply goes across the picket line, the union disciplines him, does he have to show that after he went across the picket line he was doing contract adjustment or grievance work?

Mr. Laurence Gold: I think that the union would have to have a basis for believing that he was doing a work other that grievance adjustment, but I think that under the normal rule that the party in possession of the facts although have the burden of going forward, I would think that they ought to be some burden on him to show that he did not do anything other than handle grievances and bargain.

Justice William H. Rehnquist: So the union can impose a flat rule of discipline for crossing the picket line and he is got to at least come up with something or the Board has to, before they can show an error on unfair labor?

Mr. Laurence Gold: That would seem to me to be the most logical burden of proof.

In other words, in a situation and it would seem to me that it would be something like Green v. McDonald Douglas whether under Title VII circumstance, you go back and forth.

If the supervisor came up to the picket line and said I am crossing solely to do bargaining unit, I mean, grievance handling, the union, it might be fair to say that the union has to show something that he did not keep his word or be in the soup.

On the other hand, he just goes in and comes up against the background where he has never solely the handling of grievances and says goodbye fellows, I am going to this line, then it would seem to me proper for the union to discipline him and for him to have to show in defense that he restricted his work to grievance handling and bargaining.

Chief Justice Warren E. Burger: What if he came to the picket line with an affidavit reciting in detail that employer had called him and had a serious grievance and bargaining problems to deal with, that he was going to the end of the plant, crossing the line for that purpose and only that purpose, where is the burden of proof now?

Mr. Laurence Gold: On the union.

Chief Justice Warren E. Burger: Thank you Mr. Gold.

Mr. Come, you have some time left.

Rebuttal of Norton J. Come

Mr. Norton J. Come: First of all with respect to the Florida Power, at pages 30 and 31 of the transcript of the oral argument, this question was put the union counsel.

Suppose in an employee strike, you had a group of rank-and-file employees across the picket line and then the supervisor crossed the picket line to supervise them, would you feel that this made this a different case?

Answer; it is a completely different case.

On what basis do you draw that distinction?

Answer; because when a supervisor is in fact directing the work for us, doing what he normally does, he is performing at the very least, his supervisory duty as that is defined in Section 211.

Justice Byron R. White: Who was answering?

Mr. Norton J. Come: Mr. Come, the counsel for the union.

Justice William H. Rehnquist: We have said that agencies may be penalized and the weight we give their interpretation for taking inconsistent position, I have never heard that rule applied to private entities?

Justice Byron R. White: Or when they are different entities?

Mr. Norton J. Come: Well --

Justice Potter Stewart: And particularly when his answer is only consistent with the position here, that was a different case from the facts of Florida Power & Light?

Mr. Norton J. Come: I am not intending to get a waiver or any collateral or estoppel.

I just wanted to make it perfectly clear that in so far as the decision in Florida Power was concerned the Court did not have before it the question --

Justice Potter Stewart: The facts of this case?

Mr. Norton J. Come: The facts of this case and indeed it was specifically left out of the case on the submission.

I think in terms of the policy that went behind Florida Power, it also made a big difference that only rank-and-file work was involved because that to deprive the union of the right to discipline people for performing that truly cut at the heart of the union strike weapon and in view of the Insurance Agents and Curtis in Section 13, this Court has made it clear that absent clear indication from Congress that it intends to so limit, it is not going to do that.

I think that when you get to the performance of supervisory work as you had here, the balance is a different one and I think that there is that policy difference, but getting to the last argument that my brother made that the burden is on the supervisor or the Board to show that the supervisor was not in fact performing grievance adjustment or collective bargaining work.

It is not only an unreal situation, but it is not required by the statute because the statute prescribes restraining and coercing the employer in the selection of his representative for a grievance adjustment and collective bargaining.

We submit that when the employer selects a supervisor with those posts and directs him to come to work in a situation where there is a potential for exercising those powers, it is as much an interference with the employer selection, if you deprive him of that representative's authority, whether he in fact was called upon on a particular day to adjust grievances or not.

Because in the real world there is no way of knowing exactly when a grievance is going to arise or a collective bargaining situation is going to arise and certainly a supervisor does not cease to be become any less the management selected representative for that purpose due to the fortuity that on a particular hour or a particular day he did not have a grievance to adjust.

Justice Thurgood Marshall: And during that whole time, he could be doing struck work?

Mr. Norton J. Come: But the fact is that he was not doing struck work in this case.

There is no indication, no evidence whatsoever.

As a matter of fact --

Justice Thurgood Marshall: Well, I did not understand if you limit this up to this case, in that broad statement you made of the right of “a employer.”

Are you talking about this employer?

Mr. Norton J. Come: Well, I am talking about this employer and other employers similarly situated.

Justice Thurgood Marshall: Well then, could this employer require them to do struck work or not?

Mr. Norton J. Come: If we require them to do struck work then you get into a situation as to whether the struck work that was being required was minimal or substantial under the Board and if it was no more than he would normally do absent the strike.

In some of these situations, you have supervisors that do a minimal amount of rank-and-file work as well as their supervisory duties.

If it is no more than that under the Board’s view, you would have the same result as you had here.

If there were asking him to do more than they would normally do but for the strike then you would have a Florida Power situation.

I think this case is an easy case because there was no history of the supervisor is doing any bargaining unit, struck work and there was no requirement that they perform any and as a matter of fact the employers made it perfectly clear that they would not require them to do any writing that was covered by the bargaining agreement.

They were only required to perform their normal functions as producers, directors, and storytellers.

Unknown Speaker: That was "A through H" work?

Mr. Norton J. Come: It included some "A through H" work, but the finding of the administrative law judge which was affirmed by the Board is that "A through H" work was not bargaining unit work.

It was not struck work.

Whatever you may call it, it was not struck bargaining unit work.

Justice John Paul Stevens: Do you think Mr. Come that just the performance with the supervisory duty day-to-day means that the supervisor is representing the employer in the administration of the contract?

I mean, holding aside from whether at any phase of agreement procedure he is the employer’s representative?

Mr. Norton J. Come: I think that argument has validity.

I do not think we need to go that far in this case because on the findings of the administrative law judge and the Board, it was perfectly clear that each one of these hyphenates had grievance adjustment functions and they were exercised during the strike because this is not a situation where the strike shutdown the plant.

You had operations.

They were filming these films to be sure there was no new writing of scripts, but they were proceeding to direct and photograph and edit work that was in process and you had other employees at work whose grievances were being adjusted.

Chief Justice Warren E. Burger: Are you saying this distinguishes it from Florida Power?

Mr. Norton J. Come: I think it does Your Honor.

It distinguishes it from Florida Power because in Florida Power at least on the submission, the supervisors there were disciplined because they went across the picket line to perform rank-and-file struck work that they would not have been performing but for the strike.

Unknown Speaker: And in Florida Power those who have crossed the line to do supervisory work were not fined?

Mr. Norton J. Come: They were not disciplined.

Yes, Your Honor.

Chief Justice Warren E. Burger: Mr. Gold seem to concede that if the employee represented at the picket line through the pickets that he is going to perform only these managerial functions, then you can not be disciplined, is that correct?

Mr. Norton J. Come: Well, I would say that, I heard him and I think as I read his brief, that is inconsistent with the position that they have taken up to now because their basic position has been the one that member finding talk in dissent on the Board namely that in order to establish a violation of 8 (b) (1) (B) under Florida Power, you would have to show that the discipline was meted up for the manner in which they perform the grievance adjustment or collective bargaining function.

And the position of the Board majority and the position that I am urging here is that under Florida Power, you can affect the employer selection of his representative for these purposes, merely by threatening to discipline employee or supervisors if they cross the picket line to perform their supervisory duties where they include these functions and it does not have to be for the manner in which they performed any particular grievance adjustment or collective bargaining matter.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

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