Opposition Brief — Synergy Gas Corp. v. Sasso

. WAP VED Th) SWS

NOV 23 1988

NIOL, JR,

OLERK

No. 88-675

IN THE

Supreme Court of the United States

October Term, 1988

SYNERGY GAS CORPORATION,

Petitioner,

V.

ROBERT SASSO, Individually and as President of LOCAL

282, INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA,

Respondents.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

EUGENE S. FRIEDMAN

(Counsel of Record)

FRIEDMAN LEVY-WARREN & Moss

1500 Broadway

New York, New York 10036

(212) 354-4500

TABLE OF CONTENTS

ee | a a ee

Tk ge |

SOE POET TeCe Pe ee LT Pee er Pere

I. Synergy Consented to an Adjudication on the

Merits of the Union’s Claims. ............

Ii. The Arbitrator’s Interpretation of the Agree-

ment Did Not Exceed His Authority. ......

NUNES Soe ire iC eRe ck a ae er

PAGE

14

TABLE OF AUTHORITIES

Cases

Alyeska Pipe Line Service Co. v. Wilderness So-

ciety, 421 U.S. 240 (iia) 3 eee

Cement Divisions, National Gypsum Co. v. United

Steelworkers of America, 793 F.2d 759 (6th Cir.

1986)... oo 00 oka aun

Fortex Mfg. Co. v. Local 1065, Amalgamated

Clothing Workers of America, 99 L.R.R.M.

(BNA) 2303 (MLD. AR See

Federal Commerce & Navigation Co. v. Kanématsu-

Gosho, Ltd., 457 F.2d 387 (2d Cir. 1972) ....

Glover Bottled Gas Corp., Cases 29-CA-10641, 29-

CA-10763-1, 29-CA-10763-2, 29-CA-10795-1,

29-CA-10795-2, 29-CA-11302, 29-CA-12653,

Decision of ALJ Philip P. McLeod dated August

26, 1987 . 2. c. 20

Glover Bottled Gas Corp., 275 NLRB 658 (1985).

enforced, 801 F.2d 391 (2d Cir. 1986). cert.

denied, 107 S. Ct. 1288 (1987) ............

Glover Bottled Gas Corp. v. Local 282, 1.B.T..,

119 A.D.2d 727, 501 N.Y.S.2d 394 (2d Dept.

1986) ...

Glover Bottled Gas Corp. Vv. Local 282, |

767 F.2d 907 (2d Cir. 1985)

Glover Bottled Gas Gorp. v. Local Union No. 282,

1.B.T., 711 F.2d 478 (2d Cir. 1983) ..

PAGE

1}

12

1]

1]

lil

PAGE

Glover Bottled Gas Corp. v. Local 282, 1.B.T., 89

A.D.2d 1007, 454 N.Y.S.2d 447 (2d Dept.

rE a a's en's oa 9 0's 0 44 8 ww 8. 2

Glover Bottled Gas Corp., 255 NLRB 137 (1981),

enforced, 112 LRRM (BNA) 2895 (2d Cir.

Ne galas Gk os Cake ewe a 8 ks woe 11

IAM District 776 v. Texas Steel Co., 639 F.2d 279

MG ae Wh os kb sd ane yes 9

Jaspan v. Synergy, No. CV-87-0164 (E.D.N-Y.

aa oi ane 5 Ota a's ba 6s ns 5

Kirke LaShelle Co. v. Paul Armstrong Co., 263

EE sek a dace eu aeeeateeay ae 12

Kurt Orban Co. v. Angeles Metal Systems, 573

Pee Ce LE, EPPO) oss ce ccncccsesaes 9

Litton Unit Handling Systems v. Shopmen’s Local

Union No. 522, 90 L.R.R.M. (BNA) 3176 (S.D.

re fe. oe a ke a aoe eae 12

Mobil Oil Corp. v. Independent Oil Workers Union,

OCAW, 679 F.2d 299 (3d Cir. 1982) ...... 9

Synergy Gas Corp., a/k/a Glover Bottled Gas

Corp., 283 NLRB No. 100 (1987), enforced,

843 F.2d 1510 (2d Cir. March 30, 1988) .... 11

United Steelworkers of America V. Enterprise Wheel

& Car Corp., 363 U.S. 593 (1960) ...... 6,9, 10, 12

United Paperworkers International Union v. Misco,

er Bey Gey POO CESOI) . occ ces hea we 6, 10, 12

United Steelworkers of America Vv. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960) ........ 10

iv

PAGE

Arbitration Awards

Basic Vegetable Products, Inc., 64 Lab. Arb.

(BNA) 620 (1975) (Gould, Arb.) ........ 13

Glover Bottled Gas Corp., A.A.A. Case No. 1330-

0323-81 (1981) (Cashen, Arb.) ............ passim

Glover Bottled Gas Corp./Synergy Gas Corp.,

A.A.A. Case No. 1330-1154-85 (1987) (Simons,

NE 4k aa a ee passim

John Morrell & Co., 69 Lab. Arb. (BNA) 264

CEST) CCIE, BOL) xvas nce ei ew kena: 13

Leavenworth Times, 71 Lab. Arb. (BNA) 396

(i978) (Botwell, Arb.) .. 2... 6c scan ans 13

Sonic Knitting Industries, Inc., 65 Lab. Arb. (BNA)

453 (1975) (Helfeld, Arb.) ............... 13

Sunshine Convalescent Hospital, 62 Lab. Arb.

(BNA) 276 (1974) (Lennard, Arb.) ........ 13

No. 88-675

IN THE

Siuyreme Court of the United States

October Term, 1988

«

SYNERGY GAS CORPORATION,

Petitioner,

Vv.

ROBERT Sasso, Individually and as President of Loca. 282,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,

Respondents.

r

v

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

The Respondent, Robert Sasso, President of Local 282,

International Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America (hereinafter, “Local

282” or “the Union’), respectfully prays that this Court

deny the Petition of Synergy Gas Corporation (“Synergy”

or “the Employer’) for a writ of certiorari to review the

judgment and opinion of the United States Court of Appeals

for the Second Circuit entered in this matter on July 26,

1988.

Statement of the Case

The Petition for a Writ of Certiorari herein represents the

latest step in an eight year effort by the Employer to thwart

tJ

a remedy for violations of the 1979-1982 collective bargain-

ing agreement between the parties (“the Agreement” ).'

In October 1980, the Employer discharged James Brown,

a driver represented by Local 282. The Union sought arbi-

tration on Mr. Brown’s behalf, and on October 4, 1981,

Arbitrator James Cashen issued an Award directing the

Employer to reinstate Brown retroactive to the date of dis-

charge and to pay him full backpay. Joint Appendix before

the United States Court of Appeals for the Second Circuit

(“JA”) 18-27.

Under Section 12(e) of the Agreement, a party is re-

quired to comply with an arbitration award within fifteen

days after its issuance. Appendix to the Petition for the

Writ of Certiorari (“Pet.”) 21a. Following issuance of the

Cashen Award, Brown was advised to return to work, and

received a letter from the Employer confirming his reinstate-

ment. In order to return to work, he quit his interim job,

and proceeded to the Employer’s facility, only to be told

that he would not be reinstated. JA 55-56; JA 105-22.

The Employer then commenced an action in New York

State Supreme Court, Suffolk County, to vacate the Cashen

Award, claiming that the Arbitrator had engaged in mis-

conduct. Local 282 filed a cross-petition to confirm.

Initially, the Supreme Court confirmed the Award without

a hearing, but the Appellate Division reversed and remanded

for a hearing on the allegations of misconduct. Glover

Bottled Gas Corp. Vv. Local 282, 1.B.T., 89 A.D.2d 1007,

454 N.Y.S.2d 447 (2d Dept. 1982). Following a hearing,

at which the allegations of wrongdoing on the arbitrator’s

part were completely rejected, the Cashen Award was again

1 The signatories to the Agreement were Local 282 and Glover

Bottled Gas Corporation (“Glover”). In February 1984, Glover

changed its name to Synergy.

confirmed, and the Appellate Division affirmed. Glover

Bottled Gas Corp. v. Local 282, 1.B.T., 119 A.D.2d 727.

501 N.Y.S.2d 394 (2d Dept. 1986).

Despite the confirmation of the Cashen Award, Synergy

continued its refusal to reinstate Brown or to pay him any

backpay. On July 12, 1985, Local 282 filed a new grievance

with the American Arbitration Association (“AAA”) seek-

ing a remedy for Synergy’s defiance of its contractual obliga-

tion to comply with an arbitrator’s award. The issue to be

arbitrated was:

“How much money and what other relief are James

Brown and Local 282 and affiliated funds entitled

to receive pursuant to the arbitration award of James

Cashen dated October 5, 1981.”

JA 31.

Hearings were held on June 24, July 15, October 15 and

November 26, 1986 before Arbitrator Jesse Simons, who

had been designated by the AAA to hear and determine

the July 12, 1985 grievance. While stipulating that the

arbitral submission would be “What relief, if any, is James

Brown entitled to pursuant to the Arbitration Award of

James Cashen dated October 5, 1981,” the parties agreed

that the arbitrator had the authority under that submission

to adjudicate on the merits the Union’s claims for back pay,

pension and medical benefits, attorneys’ fees and union dues.

Pet. 31a-32a; JA 362 n.*, 414 n.**.’

On June 15, 1987, Arbitrator Simons issued a 68 page

Opinion with the following Award:

I. The Employer, subject to III-A. herein, is

directed to pay forthwith to James Brown:

2 By the time the hearing convened, Brown was suffering from a

brain tumor and was unable to work. JA 60-67. Consequently,

Local 282’s reinstatement demand became moot.

A. Back pay in the amount of $57,285 plus

accrued interest from October 20, 1980 through

March 31, 1987 in the amount of $32,255 tor a

total of $89,540;

B. Simple interest at 16% on the above back

pay which totals $25.00 per day from April 1,

1987 until the date of payment;

C. $2,640 in lieu of profit sharing plan con-

tributions, plus simple interest at 16% (totaling

$1.16 per day) from April 1, 1987 until the date

of payment.

Il. The Employer is directed to pay forthwith

to Local 282 Pension Trust Fund:

A. Contributions from October 24, 1980

through January 31, 1983 in the amount of

$6,104 plus accrued interest from January 1,

1982 through March 31, 1987 in the amount of

$5,127, for a total of $11,231;

B. Simple interest at 16% of $2.68 per day

from April 1, 1987 until the date of payment.

III-A. The Employer is to deduct from the

$57,285 to be paid to Grievant in I-A above, a sum

equal to the dues specified in Article 13(a) and

13(b) of the Agreement, that would have been de-

ducted from the wages of Grievant (after deducting

ror wages earned and unemployment benefits) that

Grievant would have earned working for the Em-

ployer for the period October 9, 1980 to January

31. 1983 plus simple interest at 16% accruing

beginning December |, 1981 to the date of payment,

and said sum is to be calculated on the basis of the

Union’s calculations as set forth in its Brief, and

said sum is to be paid forthwith to Local 282, I.B.T..

and in the event the Union concludes that the

amount paid is incorrect it may, on prompt written

notice to the Employer and the Undersigned, submit

its dues claim at the hearing referred to below in

III-B, and the Undersigned retains jurisdiction to

determine said amount.

IlI-B. The Employer is directed to pay to Locai

282, 1.B.T. a sum equal to the reasonable attorneys’

fees incurred as a result of litigating the Employer’s

refusal to comply with Arbitrator Cashen’s Award

of October 5, 1981 in violation of Section 12(e)

of the Glover-282 I.B.T. Collective Bargaining

Agreement (Union Exhibit 2), and the Under-

signed herewith retains jurisdiction to determine the

amount of said fees, and hearings on same will be

scheduled as promptly as possible, and jurisdiction

is retained until such hearing and determination is

made.

JA 427-28.

On July 9, 1987, the Union wrote Arbitrator Simons

asking him to schedule a hearing to determine the amounts

of union dues and attorneys’ fees payable pursuant to Para-

graphs III-A and III-B of his Award. Synergy responded

by bringing an action to vacate the Simons Award in New

York State Supreme Court, Nassau County, and obtaining

an ex parte stay of further proceedings before Arbitrator

Simons. Local 282 promptly removed the action to the

United States District Court for the Eastern District of New

York, counterclaimed to confirm the Award, and moved to

consolidate this action with Jaspan v. Synergy, No. CV-87-

0164 (E.D.N.Y. January 25, 1988) another case involving

Synergy’s defiance of an arbitrator’s back pay award.

Synergy moved to remand to New York State Supreme

Court. By an oral decision dated September 19, 1987, Chief

Judge Jack Weinstein denied the Union’s motion to con-

solidate and the Employer’s motion to remand. JA 523.

The parties then cross-moved for summary judgment, and

by an oral decision dated January 25, 1988 (JA 620), and

an Order dated February 4, 1988 (Pet. 17a-18a), Chief

Judge Weinstein confirmed the Simons Award, vacated the

State Supreme Court stay, and remanded to Arbitrator

Simons for the calculation of attorneys’ fees. Synergy ap-

pealed, and on July 26, 1988, the United States Court of

Appeals for the Second Circuit unanimously aflirmed Chief

Judge Weinstein. Pet. la-l6a. An application by Synergy

to the Second Circuit for a stay was denied, and Synergy

then filed the instant Petition for a Writ of Certiorari.

Summary of Argument

Synergy’s Petition tor a Writ of Certiorari satisfies none

ot this Court's discretionary considerations governing review

on certiorari. Synergy concedes that the Second Circuit

decision does not create a conflict among the Circuits. See

Pet. 17. Neither can Synergy point to a conflict with any

decisions of this Court or to any important question of

federal law which has not been. but should be, settled by this

Court.

Instead, this case involves a routine application of the

principles enunciated in United Steelworkers of America V.

Enterprise Wheel & Car Corp., 363 U.S. 593 (1960) and

United Paperworkers International Union v. Misco, Inc.,

108 S. Ct. 364 (1987). Synergy’s efforts to give this case

a larger significance misconstrues the record before the

arbitrator and his well-reasoned Opinion and Award.

ARGUMENT

Synergy Consented to an Adjudication on the

Merits of the Union’s Claims.

Synergy argued in the Second Circuit, and appears to be

contending herein, that the submission to the arbitrator

precluded the award of pension contributions, union dues

and attorneys’ fees. That is simply incorrect.

The Union’s arbitration demand sought a determination

of “How much money and what other relief are James

Brown and Local 282 and affiliated funds entitled to receive

pursuant to the arbitration award of James Cashen dated

October 5, 1981.” JA 31. Throughout the arbitration

proceedings, the Union’s claims for Pension Fund contribu-

tions. Union dues, medical reimbursement and attorneys’

fees were repeatedly discussed. Pet. 23a-32a; JA 87-90,

177-84, 241-49. In determining the formal submission, the

parties expressly agreed that Arbitrator Simons would have

the authority to grant, “if it’s justified,” all of the Union’s

claims. Pet. lla. The following colloquy from the tran-

script of the October 15, 1986 hearing, portions of which

were excerpted by the Second Circuit in its decision (Pet.

lla), is dispositive of Synergy’s contention:

The Arbitrator: ... Counselor, can you agree to

aa (sic) stipulated issue to be arbitrated, which

would consider the very simple language, what relief

is James Brown entitled to pursuant to Arbitrator

Cashen’s award of October 5, 1981 with the clari-

fication, which is now on the record perhaps three

times, that IT have made, namely. that you are free

to advance all these other claims. and I will adjudi-

cate them, and he is free to advance arguments

where you are not entitled to pension contributions,

or payment oi legal fees, or of payment medical

fees, et cetera, et cetera?

I am saying all the claims you would advance

under the heading of his rights as a reinstated em-

ployee pursuant to Cashen, I will entertain them.

1 will consider them, and | will decide them, and

[ will direct a payment with respect to that, if your

argument is sustained. If it is not, there will be no

direction of payment.

[Local 282’s Attorney]: Based upon clarification

and the understanding that you interpret this lan-

guage to include—if it’s justified—trelief that might

be actually paid to some other entity, I have no

problem with that.

The Arbitrator: So when I said up for grabs,

I mean up for grabs.

[Synergy’s Attorney]: Yes.

The Arbitrator: All right.

[Synergy’s Attorney]: Insert the words “If any,”

and—

The Arbitrator: So let us then rewrite what now

appears as 6, and agree to it on the record.

[Synergy’s Attorney]: Which we have been on?

The Arbitrator: Yes.

The Arbitrator: The parties are agreed. and have

so stated, that the following issue is the issue to

be arbitrated by me: “What relief. if any, is James

Brown entitled to pursuant to the arbitration award

of James Cashen, dated October 5, 1981.”

Pet. 31a-32a.

In upholding arbitrator Simons’ Award, the Second

Circuit stated “that any doubt concerning the scope of the

submission agreement is to be resolved in favor of cover-

age....” Pet. lla, citing Federal Commerce & Navigation

Co. Vv. Kanematsu-Gosho, Ltd., 457 F.2d 387, 390 (2d Cir.

1972); accord Kurt Orban Co. v. Angeles Metal Systems,

573 F.2d 739, 740-41 (2d Cir. 1978). At least three other

Circuits agree that an arbitrator’s interpretation of the

scope of the submission is subject to great deference. See

Cement Divisions, National Gypsum Co. v. United Steel-

workers of America, 793 F.2d 759, 765 (6th Cir. 1986);

Mobil Oil Corp. v. Independent Oil Workers Union, OCAW,

679 F.2d 299, 302 & n.1 (3d Cir. 1982); 1AM District 776

v. Texas Steel Co., 639 F.2d 279, 283 (Sth Cir. 1981);

cf. Enterprise Wheel & Car, 363 U.S. at 598 (“It is not

apparent that [the arbitrator] went beyond the submission” ).

Here, however, the degree of deference due an arbitrator's

interpretation of the scope of the submission is not even

properly before the Court. As Arbitrator Simons twice

noted in his Opinion (JA 362 n.*, 414 n.**), Synergy

expressly agreed that the arbitrator would have the authority

to rule on the merits of all of the Union’s claims. By doing

so, the Employer waived any claim that the arbitrator ex-

ceeded the scope of the submission.

Il.

The Arbitrator’s Interpretation of the Agreement

Did Not Exceed His Authority.

In its Petition, the Employer repeatedly conflates its ob-

jections to the Arbitrator’s jurisdiction, which were waived,

with its objections on the merits, which are insubstantial.

In particular, Synergy disagrees with the arbitrator’s finding

that the Agreement authorized an award of attorneys’ fees

to Local 282.

10

Arbitrator Simons based his award of attorneys’ fees on

two independent and alternative grounds. The Arbitrator’s

first ground for the award of attorneys’ fees was Synergy’s

violation of Section 12(e) of the Agreement, providing

for compliance with an award within fifteen days after

issuance. Simons found that Synergy violated the Agree-

ment twice; first, by its discharge of Mr. Brown in 1980

without just cause in violation of Section 12(f) of the

Agreement; second, by its refusal to comply with the Cashen

award in 1981 in violation of Section 12(e). While rein-

statement with backpay is the ordinary remedy for the first

violation, the Arbitrator ruled that Section 12(e) creates

an additional obligation on the Employer's part to make the

Union whole for its expenses incurred as a consequence

of the violation of that provision. JA 421-22. Arbitrator

Simons interpreted that “make whole” remedy to include

attorneys’ fees.

Synergy contends that the Arbitrator misconstrued Sec-

tion 12(e), and that the sole purpose of that Section was

to authorize the Union to strike upon the Employer’s failure

to comply with an award. However, an arbitrator's pur-

ported error in construing a collective bargaining agreement

does not warrant reversal of his award. Misco, 108 S. Ct.

at 370-71; Enterprise Wheel & Car, 363 U.S. at 598-99.

Under the decisions of this Court, it is the Arbitrator who

is deemed to be familiar with the parties’ bargaining history

and industry practice; it is the judgment of the Arbitrator

for which the parties bargained. /d. at 596-97; United

Steelworkers of America V. Warrior & Gulf Navigation Co.,

363 U.S. 574, 578-82 (1960).

As Arbitrator Simons noted. Section 12(e) is an “un-

usual” contract provision. JA 422. His construction of

that unusual provision was reasonable, and is not subject to

“plenary review by a Court of the merits.” Enterprise Wheel

& Car, 363 US. at 598-99: see Misco, 108 S. Ct. at 370-71.

1]

The Arbitrator’s second ground for the award of attor-

neys’ fees was that Synergy’s protracted defiance of the

Cashen Award was frivolous and undertaken in bad faith.

Synergy cannot credibly contend that the Arbitrator’s

factual findings in that respect were erroneous. For over

eight years, Synergy has been avoiding its responsibility

for its unlawful discharge of an older employee now suffer-

ing from a brain tumor. See JA 400-401. It made false

accusations against Arbitrator Cashen, and frivolous argu-

ments to Arbitrator Simons. Moreover, as Arbitrator

Simons noted, Synergy has a history of willful defiance of

its legal obligations.°

Arbitrator Simons had ample grounds for his finding that

by engaging in “conscious, deliberate and egregious wrong-

doing,” (JA 423), Synergy had acted in bad faith within

the meaning of Alyeska Pipe Line Service Co. Vv. Wilderness

Society, 421 U.S. 240 (1975). He was fully justified in

implying into the Agreement an obligation on Synergy’s

part to make the Union whole for the damages resulting

3 Local 282 represents only two small bargaining units of Synergy

employees, yet the Employer has amassed a record of lawlessness

unrivaled by malfeasant companies many times its size. See, e.g.,

Glover Bottled Gas Corp., 255 NLRB 137 (1981), enforced, 112

LRRM (BNA) 2895 (2d Cir. 1982) (unlawful discharge of driver );

Glover Bottled Gas Corp. v. Local Union No. 282, 1.B.T., 711 F.2d

478 (2d Cir. 1983) and Glover Bottled Gas Corp. v. Local 282,

1.B.T., 767 F.2d 907 (2d Cir. 1985) (unlawful discharge of shop

steward and two other drivers); Glover Bottled Gas Corp., 275

NLRB 658 (1985), enforced, 801 F.2d 391 (2d Cir. 1986), cert.

denied, 107 S. Ct. 1288 (1987) (illegal discharge of four office

employees); Synergy Gas Corp., a/k/a Glover Bottled Gas Corp.,

283 NLRB No. 100 (1987); enforced, 843 F.2d 1510 (2d Cir. March

30, 1988) (uniawful refusal to bargain); Glover Bottled Gas Corp.,

Cases 29-CA-10641, 29-CA-10763-1, 29-CA-10763-2, 29-CA-

10795-1, 29-CA-10795-2, 29-CA-11302, 29-CA-12653, Decision

of ALJ Philip P. McLeod dated August 26, 1987 (JA 477)

(numerous, violations including, inter alia, unlawful refusal to bar-

gain, unlawful withholding of benefits, unlawful refusal to reinstate

strikers and unlawful second discharge of shop steward).

12

from that bad faith.‘ His determinations concerning the

nature of the Employer’s conduct and the meaning of the

Agreement were correct, and in any event are not subject

to review on the merits. See Misco, 108 S. Ct. at 370-71.

An arbitrator’s discretion is greatest “when it comes to

formulating remedies.” Misco, 108 S. Ct. at 372 (emphasis

in original), quoting Enterprise Wheel & Car, 363 U.S. at

597. Arbitrator Simons reviewed the parties’ arguments

with care, and formulated an appropriate remedy based

upon two alternative grounds.

An arbitrator's award will be sustained as long as he is

“even arguably construing or applying the contract.” Misco,

108 S. Ct. at 371. In order to warrant judicial relief,

Synergy would have to demonstrate the invalidity of each of

the grounds asserted by Arbitrator Simons as a basis for his

Award. Cf. Enterprise Wheel & Car, 363 U.S. at 598

(where arbitrator’s opinion is ambiguous as to whether he

has exceeded his authority, award will nevertheless be

confirmed). Here, both grounds asserted by the arbitrator

are plausible, and there is no basis for second-guessing his

“well reasoned sixty-eight page opinion.” Pet. 16a.

Synergy correctly notes that arbitrators do not frequently

award attorneys fees... Nothing in Arbitrator Simons’

+ Under New York law, a covenant of good faith and fair dealing

has long been implied into every contract. See, e.g., Kirke LaShelle

Co. Vv. Paul Armstrong Co., 263 N.Y. 79 (1933). While New York

law is not binding on the arbitrator, it can hardly be said that an

arbitrator, construing a collective bargaining agreement executed in

New York, is precluded from implying a similar covenant into the

parties Agreement.

> There are few reported decisions awarding such relief. See, e.g.,

Fortex Mfg. Co. Vv. Local 1065, Amalgamated Clothing Workers

of America, 99 L.R.R.M. (BNA) 2303 (M.D. Ala. 1978): Litton

Unit Handling Svstems Vv. Shopmen’s Local Unian No. 522, 90

(footnote continued on foilowing page)

———— oo =—h—

—

oF |

Award or in the Second Circuit decision is likely to change

that state of affairs. The arbitrator was confronted with an

“unusual” contract clause and “egregious” employer be-

navior. The threat of a flood of arbitral attorneys’ fee

awards following in the wake of the Simons Award is pure

mirage.

After eight years, it is time for this dispute to be put to

rest. The Employer's Petition for a Writ of Certiorari does

not raise any issue warranting review by this Court.

(footnote continued from preceding page)

L.R.R.M. (BNA) 3176 (S.D. Ohio 1975); John Morrell & Co.,

69 Lab. Arb. (BNA) 264, 282 (1977) (Conway, Arb.); Sonic

Knitting Industries, Inc., 65 Lab. Arb. (BNA) 453, 469 (1975)

(Helfeld, Arb.):; Basic Vegetable Products, Inc., 64 Lab. Arb.

(BNA) 620, 625 (1975) (Gould, Arb.); Sunshine Convalescent

Hospital, 62 Lab. Arb. (BNA) 276, 279 (1974) (Lennard, Arb.);

see generally Leavenworth Times, 71 Lab. Arb. (BNA) 396, 409

(1978) (Bothwell, Arb.).

14

Conclusion

For the foregoing reasons, Respondent respectfully sub-

mits that the Petition for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit should

be denied.

Date: New York, New York

November 22, 1988

Respectfully submitted,

FRIEDMAN, LEVY-WARREN & Moss

Attorneys for Respondent

1500 Broadway, Suite 2303

New York, New York 10036

(212) 354-4500

EUGENE S. FRIEDMAN

Attorney of Record

Of Counsel:

FRANKLIN K. Moss

SUSAN L. Ross