Petition for Writ of Certiorari — Stephen J. Simoni, Petitioner v. Jersey Shore University Medical Center, et al.

Supreme Court briefMar 8, 2021

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No. ---------------------------------------------------------------------------------------------------------In The

Supreme Court of the United States

------------------------------------------------------STEPHEN J. SIMONI,

Petitioner,

JERSEY SHORE UNIVERSITY MEDICAL CENTER

and

HACKENSACK MERIDIAN HEALTH,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

--------------------------------------PETITION FOR A WRIT OF CERTIORARI

---------------------------------------

Stephen Simoni

Counsel of Record

Simoni Law Offices

c/o Jardim, Meisner & Susser, P.C.

30B Vreeland Road, Suite 100

Florham Park, New Jersey 07932

(917) 621-5795

StephenSimoniLAW@gmail.com

March 8, 2021

QUESTION PRESENTED

United States Supreme Court precedent requires that union members

be awarded attorneys’ fees where the employer wrongfully blocked access to quick

and inexpensive mandated arbitration and thereby forced the union members to seek

a remedy in the judiciary. But are arbitrators in federal labor cases free to disregard

this United States Supreme Court precedent simply because the subject Circuit Court

of Appeals has not yet itself addressed the issue?

PARTIES TO THE PROCEEDING

Stephen J. Simoni, Petitioner.

Jersey Shore University Medical Center and Hackensack Meridian Health,

Respondents.

STATEMENT OF RELATED PROCEEDINGS

Roe v. Diamond, 519 Fed. Appx. 752 (3d Cir. 2013);

Roe v. Diamond, 2011 U.S. Dist. LEXIS 115596 (D.N.J. Oct. 5, 2011), rev'd in

relevant part, 519 Fed. Appx. 752 (3d Cir. 2013);

Roe v. Luciani, No. MON-L-4020-12 (N.J. Super.), Mar. 13, 2013;

Simoni v. Diamond, Civ. No. 10-6798 (FLW), 2015 U.S. Dist. LEXIS 108640

(D.N.J. Aug. 18, 2015);

Simoni v. Diamond, Civ. No. 10-06798-PGS (D.N.J. Apr. 12, 2017);

Simoni v. Diamond, No. 10-cv-6798, 2017 U.S. Dist. LEXIS 2746 (D.N.J. Jan. 9,

2017);

Simoni v. JSUMC, Civ. No. 18-17714-FLW, 2019 U.S. Dist. LEXIS 223616

(D.N.J. Dec. 30, 2019).

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDINGS ............................................................................ ii

STATEMENT OF RELATED PROCEEDINGS ........................................................... ii

TABLE OF AUTHORITIES .......................................................................................... v

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATUTORY PROVISIONS INVOLVED .................................................................... 1

STATEMENT OF THE CASE....................................................................................... 2

REASONS FOR GRANTING THE PETITION ............................................................ 3

Decades-old Supreme Court Authority Awards Attorneys’ Fees to

Union Members Who Were Wrongfully Denied Their Right to Quick

and Inexpensive Mandated Arbitration ............................................................. 3

II.

The Third Circuit, the District of New Jersey, the American

Arbitration Association, and the Union All Stated That Hospital Had

Wrongfully Blocked Nurse's Access to Quick and Inexpensive

Mandated Arbitration, Which Spawned 10 Years of Continuing

Burdens on the Federal and State Judiciaries .................................................. 5

III.

The Union............................................................................................... ... 6

American Arbitration Association ........................................................... 6

District of New Jersey .............................................................................. 6

Third Circuit ............................................................................................. 6

Following U.S. Supreme Court Precedent, Countless Circuits Have

Awarded Attorneys’ Fees to Union Members Who Were Wrongfully

Denied Their Right to Quick and Inexpensive Mandated Arbitration ............. 7

iii

IV.

First Circuit .............................................................................................. 7

Second Circuit .......................................................................................... 8

Fourth Circuit........................................................................................... 9

Fifth Circuit .............................................................................................. 9

Sixth Circuit ............................................................................................. 9

Seventh Circuit....................................................................................... 10

Ninth Circuit .......................................................................................... 10

It is Respectfully Submitted That The Third Circuit Erred By Failing

to Follow U.S. Supreme Court Precedent ........................................................ 11

CONCLUSION............................................................................................................. 12

APPENDIX

Opinion in the United States Court of Appeals for the Third Circuit

(November 5, 2020).......................................................................................... App. 1

Opinion in the United States District Court for the District of New Jersey

(December 30, 2019) ........................................................................................ App. 9

Opinion and Award of the American Arbitration Association

(August 31, 2018)........................................................................................... App. 26

Order Denying Rehearing in the United States Court of Appeals for the Third

Circuit (December 8, 2020) ........................................................................... App. 56

TABLE OF AUTHORITIES

Page(s)

Allied v. Plant Maintenance Co.,

881 F.2d 291 (6th Cir. 1989) .................................................................................... 9

Bennett v. Local Union No. 66, Glass, Molders, Pottery, Plastics and Allied

Workers Union, 958 F.2d 1429 (7th Cir. 1992) ..................................................... 10

Bowen v. USPS,

459 U.S. 212 (1983) .................................................................................................. 4

Clayton v. Automobile Workers,

451 U.S. 679 (1981) .................................................................................................. 5

De Arroyo v. Sindicato de Trabajadores Packinghouse,

425 F.2d 281 (1st Cir. 1970),

cert. denied, 400 U.S. 953 (1970) ............................................................................. 8

Dutrisac v. Caterpillar Tractor Co.,

749 F.2d 1270 (9th Cir. 1983) ................................................................................ 10

Hines v. Anchor Motor Freight, Inc.,

424 U.S. 554 (1976) .................................................................................................. 5

Holodnak v. Avco Corp.,

514 F.2d 285 (2d Cir. 1975), aff’g in relevant parts

381 F. Supp. 191 (D. Conn. 1974), cert. denied, 423 U.S. 892 (1975) .................... 8

Self v. Drivers, Chauffeurs,

620 F.2d 439 (4th Cir. 1980) .................................................................................... 9

Seymour v. Olin Corp.,

666 F.2d 202 (5th Cir. 1982) .................................................................................... 9

UFCW, Locals 197 & 373 v. Alpha Beta Co.,

736 F.2d 1371 (9th Cir. 1984) ................................................................................ 10

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Stephen Simoni, respectfully petitions this Court for a writ

of certiorari to review the judgment of the United States Court of Appeals for the

Third Circuit in this case.

OPINIONS BELOW

The Opinion of the Third Circuit can be found at 2020 U.S. App. LEXIS

35026. Both the Opinion and the Order of the Third Circuit denying the petition for

rehearing and rehearing en banc of the Opinion are reproduced in the appendix

hereto (“App.”) at App. 1 and App. 56, respectively. The Opinion of the District Court

for the District of New Jersey can be found at 2019 U.S. Dist. LEXIS 223616 and is

reproduced at App. 9.

The Opinion and Award of the American Arbitration

Association are reproduced in the appendix hereto at App. 26 and App. 54,

respectively.

JURISDICTION

The judgment of the Third Circuit denying the petition for rehearing

and rehearing en banc of the Opinion was entered on December 8, 2020. App. 56.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The National Labor Relations Act and Labor Management Relations Act

enforce a federal labor policy that keeps union worker disputes out of the judiciary by

awarding attorneys fees as compensatory damages against both the union and the

employer where each entity wrongfully blocked the worker’s access to a Collective

Bargaining Agreement’s (“CBA”) quick and inexpensive grievance process that

mandates binding arbitration.

STATEMENT OF THE CASE

Petitioner Stephen Simoni (“Nurse” or “Union Member”), a member of

Health Professionals & Allied Employees, Local 5058, AFT/AFL-CIO (“Union”), was

terminated by Respondent Jersey Shore University Medical Center (“Hospital”) on

October 18, 2010. Nurse submitted a timely grievance with the Union, which the

Union in turn filed with the Hospital in accordance with the subject collective

bargaining agreement’s (“CBA”) grievance process.

But Hospital flatly refused to process the Union’s grievance and instead

subjected Nurse to ten years of costly, extensive, and time-consuming litigation that

necessitated the involvement of three judges of the U.S. District Court for New Jersey,

the Presiding Judge of the N.J. Superior Court’s Civil Division in Freehold, and two

Third Circuit Panels of the U.S. Court of Appeals from 2011 through 2013 and again

in 2020.

Although Nurse finally received $81,338.00 in mitigated backpay eight

years after Nurse’s termination when the District Court ordered the Hospital to

arbitrate, the Arbitrator simply ignored United States Supreme Court precedent that

established Nurse’s right to attorneys’ fees as a union member who was forced to

pursue a remedy through the judicial system solely because the employer had

wrongfully and unilaterally repudiated the CBA’s grievance and mandated

arbitration process.

In Nurse’s case, that wrongful repudiation resulted in nearly 10 years

of litigation, rather than use of the CBA’s grievance and mandated arbitration

process that was designed by federal labor law statutes to quickly, inexpensively, and

exclusively resolve such disputes and thereby avoid burdening the judiciary.

Nurse explains herein that United States Supreme Court precedent

requires an award of attorneys’ fees to simultaneously (i) make terminated union

members whole; (ii) ensure that union members who are wrongfully blocked from

arbitration will find attorneys willing to take their cases; and (iii) serve to deter

employers from needlessly burdening the federal and state judiciaries with filings,

motions, and appeals of labor disputes that were intended exclusively for mandated

arbitration.

REASONS FOR GRANTING THE PETITION

Decades-old Supreme Court Authority Awards Attorneys’ Fees to

Union Members Who Were Wrongfully Denied Their Right to Quick

and Inexpensive Mandated Arbitration.

The United States Supreme Court has repeatedly recognized that an

essential objective of federal labor law is to preserve the non-judicial grievance

system as the exclusive mechanism for resolving CBA disputes of union members

and instructs that damages must therefore be apportioned against both employers

and unions to ensure that they both “comply with the grievance procedure” in order

to keep these disputes out of the courts:

[T]he grievance procedure [] provide[s] the “uniform

and exclusive method for [the] orderly settlement of

employee grievances,” which the Court has recognized

is essential to the national labor policy. See Clayton v.

Automobile Workers, 451 U.S. 679, 686-87 (1981). . . . In

the absence of damages apportionment where the default of

both [the union and the employer] contributes to the

employee’s injury, incentives to comply with the

grievance procedure will be diminished.

Bowen v. USPS, 459 U.S. 212, 226-27 (1983) (emphases added). The High Court,

moreover, explicitly authorizes union workers to obtain extra-contractual remedies

where the employer “repudiat[ed] [the subject] contractual procedures:”

An obvious situation in which the employee should

not be limited to the exclusive remedial procedures

established by the [CBA] occurs when the conduct of

the employer amounts to a repudiation of those

contractual procedures. Cf. Drake Bakeries v.

Bakery Workers, 370 U.S. 254, 260-63. See generally

6A Corbin, Contracts 1443 (1962).

Id. at 185 (emphases added).

This Supreme Court precedent mandates that Hospital must pay

Nurse’s attorneys’ fees here: By wrongfully repudiating the CBA’s grievance process

and its mandatory referral to binding arbitration, Hospital unilaterally unleashed a

decade of litigation that needlessly burdened the judiciary and imposed financial

damages on Nurse—and the Hospital thereby knowingly exposed itself to an

attorneys' fee award.

Absolving Hospital of the well-established liability for

attorneys’ fees in such circumstances will not only conflict with controlling United

States Supreme Court precedent, but it will also serve to embolden other employers

who seek to end-run CBA-mandated grievance procedures, effectively evade

grievances where the union member cannot afford counsel, force labor disputes into

the judiciary, and require judges to adjudicate CBA disputes that were intended

exclusively for the quick and inexpensive non-judicial grievance and arbitration

process—all while the employer relies on employment practices liability insurance

policies to fund its defense.

By requiring employers to pay the union member’s litigation expenses,

arbitrators reinforce the “system of private ordering that is of the highest

importance to the well-being of employer and worker alike” by deterring employers

from thwarting mandated arbitration provisions in clear contravention of the

“national labor policy that encourages private rather than judicial resolution of

disputes arising over the application and interpretation of collective-bargaining

agreements.” Clayton v. Automobile Workers, 451 U.S. 679, 686-87 (1981) (citing

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 570-71 (1976)).

This United States Supreme Court precedent was detailed at length

during the arbitration and all court proceedings below.

II.

The Third Circuit, the District of New Jersey, the American

Arbitration Association, and the Union All Stated that Hospital Had

Wrongfully Blocked Nurse's Access to Quick and Inexpensive

Mandated Arbitration, Which Spawned 10 Years of Continuing

Burdens on the Federal and State Judiciaries.

The Third Circuit, the District of New Jersey, the American Arbitration

Association, and the Union all stated that Hospital had wrongfully blocked Nurse's

access to quick and inexpensive mandated arbitration, which then spawned 10 years

of continuing burdens on the federal and state judiciaries.

And Hospital only

permitted Nurse to belatedly access mandated arbitration because Hospital was

ordered to do so by the judiciary.

The Union

The Union agreed that Nurse:

should have been provided a pre-termination hearing to

determine whether or not [Hospital] had just cause to

terminate Nurse’s employment, and that any holding

adverse to Nurse would have been eligible for

grievance and arbitration under the CBA at

Nurse's option.

Letter from Union to Nurse, dated Jan. 28, 2014 (emphasis added).

The American Arbitration Association

The arbitrator recognized that Hospital's wrongful conduct had "required

[Nurse] to litigate the issue for approximately eight years prior to these arbitration

proceedings" and awarded $81,338.00 in mitigated back pay and interest for the

fourteen-month post-termination loss of employment. Arbitral Decision, at 26-27

(App. 51-52).

District of New Jersey

The District of New Jersey ruled:

There is no dispute . . . that [Hospital] precluded

[Nurse] from engaging in the grievance process . . . .

Based on that action alone, [Nurse] has proven as a matter of

law that [Hospital] breached Article 13 of the CBA . . . .

Simoni v. Diamond, Civ. No. 10-6798 (FLW), 2015 U.S. Dist. LEXIS 108640, at *21

(D.N.J. Aug. 18, 2015) (emphasis added).

Third Circuit

The Third Circuit ruled that the refusal to afford Nurse access to the

CBA's grievance process and mandated arbitration was "based on a strained and

logically flawed interpretation of the CBA." Roe v. Diamond, 519 Fed. Appx. 752, 758

n.2 (3d Cir. 2013).

By unilaterally repudiating the CBA and thereby subjecting Nurse to

many years of costly and time consuming litigation, Hospital knowingly exposed

itself to liability for an attorneys' fee award to reimburse Nurse for the ensuing

litigation expenses that have included assistance of counsel, extensive document

discovery, multiple days of depositions, motion practice, and appeals that now

continue into the tenth year. And it was only after the District Court ordered

Hospital to do so that Hospital finally permitted Nurse to access the CBA-mandated

grievance process rather than conduct a full-blown trial in the District Court.

III.

Following U.S. Supreme Court Precedent, Countless Circuits Have

Awarded Attorneys’ Fees to Union Members Who Were Wrongfully

Denied Their Right to Quick and Inexpensive Mandated Arbitration.

Significantly, and as also detailed at length in the appeal below, other

United States Circuit Courts of Appeal have adhered to United States Supreme Court

precedent and thereby recognize attorneys’ fees as compensatory damages to union

members who have been blocked from pursuing their claim in the quick and

inexpensive forum of binding arbitration as provided for in the subject Collective

Bargaining Agreement’s mandated grievance process.

The decisions of these

numerous Circuits include those below.

1. First Circuit

The First Circuit explained that

the cost of attorney’s fees is an injury to

the employee directly attributable to and

necessitated by the failure of the union

and/or

employer

utilize

the

contractual

grievance

procedures

designed to remedy breach of contract claims

without resort to the courts. . . . [and an

attorneys’ fee award protects the worker who]

should retain a substantial portion of the . . .

‘lost earnings’ award for himself.

De Arroyo v. Sindicato de Trabajadores Packinghouse, 425 F.2d 281, 293 n.17 (1st

Cir. 1970), cert. denied, 400 U.S. 953 (1970)) (emphasis added).

2. Second Circuit

The Second Circuit affirmed the District Court’s (i) vacating of an

arbitral decision and (ii) awarding attorneys’ fees as compensatory damages to a

terminated union member against the employer in Holodnak v. Avco Corp., 514 F.2d

285, 286 (2d Cir. 1975), aff’g in relevant parts 381 F. Supp. 191 (D. Conn. 1974), cert.

denied, 423 U.S. 892 (1975).

Ruling that the terminated worker should not be

required to utilize the backpay award to cover legal expenses, the Court relied on,

inter alia, De Arroyo v. Sindicato de Trabajadores Packinghouse:

The alleged wrong inflicted on the employee, the

loss of employment in violation of contractual

rights; the anticipated recovery, perhaps too

insubstantial to sustain competent counsel’s best

efforts, and the ultimate purpose of making

the employee whole, all suggest that the

employee should retain his lost earnings for

himself. Vaca v. Sipes, 386 U.S. at 210 (Mr.

Justice Black dissenting); De Arroyo v. Sindicato

de Trabajadores Packinghouse, supra.

Holodnak v. Avco Corp., 381 F. Supp. 191, 206 (D. Conn. 1974) (emphasis added),

aff’d in relevant parts, 514 F.2d 285, 287 (2d Cir. 1975) (“We are in agreement with

the [District Court] decision to set aside the arbitration award . . . and to award [the

union member] back pay and counsel fees, and accordingly we affirm as to these

issues on the basis of [the District Court’s] thorough decision.” (emphasis added)),

cert. denied, 423 U.S. 892 (1975).

3. Fourth Circuit

In 1980, the Fourth Circuit reversed the District Court and held that

the union members

should be awarded a judgment in a reasonable

amount to cover their expenses, including

attorneys’ fees and costs, incurred in

seeking a fair resolution of their claim

against the employer.

Self v. Drivers, Chauffeurs, 620 F.2d 439, 444 (4th Cir. 1980) (emphases added).

4. Fifth Circuit

The Sixth Circuit affirmed a $39,368.75 award of attorneys’ fees to the

union member to compensate him for the expense of pursuing his remedy in the

judicial system rather than the CBA-mandated process. Seymour v. Olin Corp., 666

F.2d 202, 215 (5th Cir. 1982).

5. Sixth Circuit

In 1989, the Sixth Circuit held the employer liable for the union

member’s attorneys’ fees because the employer had played a part in depriving the

union member of the proper CBA-mandated grievance and arbitration. Allied v.

Plant Maintenance Co., 881 F.2d 291, 297 (6th Cir. 1989).

6. Seventh Circuit

The Seventh Circuit ruled in 1992 that “[t]o avoid conflict with the

American rule, courts generally limit fees awarded as [compensatory] damages in

[federal labor law cases] to the expenses incurred in pursuing the claim against

the employer.” Bennett v. Local Union No. 66, Glass, Molders, Pottery, Plastics and

Allied Workers Union, 958 F.2d 1429, 1440 (7th Cir. 1992) (emphasis added)).

7. Ninth Circuit

The Ninth Circuit rejected the argument that awarding a terminated

union member attorneys’ fees in a federal labor law case violates the American rule.

Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270, 1276 (9th Cir. 1983) (the award

“represent[s] damages, not attorney’s fees per se, and does not violate the American

rule”). The Ninth Circuit explained that awarding attorneys’ fees in a federal labor

law action does not violate the American rule because the union member had incurred

attorneys’ fees solely because the grievance had to be processed in the courts

rather than in CBA-mandated arbitration and therefore the union member’s

attorneys’ fees are not merely “a result of the harm,” but rather are “the harm itself,”

id. at 1275 (emphasis added), and would have been entirely avoided if the CBAmandated grievance process had been permitted to proceed, as designed by federal

labor statutes, for exclusive non-judicial resolution of the union member’s claim. Cf.

UFCW, Locals 197 & 373 v. Alpha Beta Co., 736 F.2d 1371, 1383 (9th Cir. 1984)

(“[T]he award of fees is appropriate when a party frivolously or in bad faith refuses

to submit a dispute to arbitration. . . . “).

IV.

It is Respectfully Submitted That The Third Circuit Erred By Failing

to Follow U.S. Supreme Court Precedent.

It is respectfully submitted that the Third Circuit erred when it declined

to modify the arbitration award to add an award for attorneys’ fees. The Third Circuit

did not acknowledge the decades-old United States Supreme Court precedent that

calls for an award of attorneys’ fees to union members who were denied the right to

quick and inexpensive mandated arbitration. Instead, the Third Circuit based its

ruling solely on its statement that “our circuit has left open whether an employee

could recover attorneys’ fees in those circumstances[, which] means our circuit has no

clear law that the arbitrator could have manifestly disregarded.” App. 6.

Arbitrators who apply federal labor law, however, must of course apply

national labor law as enunciated by the United States Supreme Court and cannot

blindly follow a specified Circuit’s law that may not have yet addressed an issue that

the United States Supreme Court already has resolved.

CONCLUSION

For the above and foregoing reasons, Petitioner respectfully requests the

issuance of a writ of certiorari to the United States Court of Appeals for the Third

Circuit.

Respectfully submitted,