Opposition Brief — Berklee College of Music v. Berklee Chapter of the Massachusetts Federation of Teachers, Local 4412

(»)

No. 88-1828

JOSEP FrSPANIOL, JR,

CLERK

=

In the

Suprene Court of the United States

OcroBer TERM, 1988

BERKLEE COLLEGE OF MUSIC,

PETITIONER,

BERKLEE CHAPTER OF THE

MASSACHUSETTS FEDERATION OF TEACHERS,

LOCAL 4412, AFT, AFL-CIO,

RESPONDENT.

RESPONDENT'S BRIEF IN OPPOSITION TO THE

GRANTING OF A WRIT OF CERTIORARI

JEFFREY W. JACOBSEN

Associate Counsel

MASSACHUSETTS FEDERATION

oF TEACHERS, AFT, AFL-CIO

216 Tremont Street

Boston, MA 02116

(617) 423-3342

Counsel for Respondent

Blanchard Press, Inc., Boston, Mass. — Law Printers [617] 426-6690

QUESTION PRESENTED

Whether the Court of Appeals followed the correct

standard of review in affirming the challenged

arbitration award where the award draws its essence

from the parties’ collective bargaining agreement,

and where the arbitrator acted within the scope of

his authority in determining that he had the inherent

power to formulate an appropriate remedy for any

procedural violations by the parties where no remedy

or penalty is contained in the collective bargaining

agreement.

III.

II

TABLE OF CONTENTS

QUESTION PREGAME? «5 x 6 56 siaeee ea ee ]

TALS, OF CORBA «0 ced os eee Cee 2

TABLE OF ALITSIQIEIUES «oo ho seen nu tiveness 4

STATEMENT OF THE CASE. ....ccuveudvawes 7

GROUNDS FOR DENYING THE WRIT........ 8

A. THE COURT OF APPEALS DECISION IS

IN ACCORD WITH THE DECISIONS OF

THIS COURT, WHERE THE

ARBITRATOR WAS ACTING WITHIN

THE SCOPE OF HIS AUTHORITY

IN RENDERING HIS AWARD AND

WHERE THE AWARD DRAWS ITS

ESSENCE FROM THE COLLECTIVE

BARGAINING AGREEMENT............ 10

B. THE CHALLENGED ARBITRATION AWARD

DRAWS ITS ESSENCE FROM THE

PARTIES' COLLECTIVE BARGAINING

AGREEMENT, AND IS WELL WITHIN

THE MAINSTREAM OF ARBITRAL

DECISION MAKING ON QUESTIONS OF

PROCEDURAL ARBITRABILITY AND

TEMEBLEIs 4 8 5 6 eae eee eee eee 13

C THE PETITIONER'S ARGUMENTS

MISSTATE THE DECISION OF THE

COURT OF APPEALS AND ARE BASED

ON A MISREADING AND

MISINTERPRETATION OF THIS

COURT'S DECISION IN MISCO.......... 21

OO eee 24

Ill

TABLE OF AUTHORITIES

CASE CITATIONS

Avco Corp. v. Mitchell, 336 F.2d 289, 6th

Cir. 1964) 12

Chauffeurs, Teamsters & Helpers, Local

No. 765 v. Stroehmann Bros. Co,, 625

F.2d 1092 (3rd Cir. 1980) 12.16

Detroit Coil Co. v. Machinists, Lodge 82,

594 F.2d 575, (6th Cir. 1979) 13, 16

International Brotherhood of Electrical

Workers v. Coval Electric Corp., 576

F.Supp. 1128 (S.D. FLA. 1983) 12

Operating Engineers Local 150 v. Flair

Builders, Inc., 406 U.S. 487 (1972) 12

Operating Engineers Local 406 v. Austin

Co., 784 F.2d 1262 (5th Cir. 1986) 12, 16

Ren Electronics v. Local 208, I.U.E.,

AFL-CIO, 665 F.Supp. 77 (D.Mass. 1987) 12

United Paperworkers International Union v,

Misco, __ U.S. _., 108 S.Ct. 364 (1987) passim

United Steelworkers of America v,

American Manufacturing Co., 363 U.S. 564

(1960) a8, io, 24

United Steelworkers of America v. Enterprise

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

United Steelworkers of America v. Warrior

& Gulf Co,, 363 U.S. 574 (1960) 11, 13 24

Washington Hospital Center v. Local 722,

S.E.LU., 746 F.2d 1503 (D.C. Cir. 1984) 12, 16

Wiley v. Livingston, 376 U.S. 543 (1964) passim

ARBITRATION CITATIONS

Bogalu ommunity Medical Center,

84 LA 978 (Nicholas, 1985) 18

Edward C, Levy Co., 81 LA 529 (Borland, 1983) 18

G&H _ Transportation, 75 LA 644 (Bullen, 1980) 18

International Paper Co., 82 LA 306 (Williams,

1984) 18

Kellogg Co., 71 LA 494 (Hon. 1978) 18

Kent County, MI, 75 LA 948 (Kruger, 1980) 18

Patterson-Sargent Co., 23 LA 21 (Willcox,

1954) 18 -

Township of Neville v. PA, 75 LA 668

(Freeman, 1980) 18

THER RITIE

Supreme Court Rules, Rule 17.1 8

Restatement (Second) of Contracts,

Section 204 16

Restatement (Second) of Contracts,

Section 229 16

IV

STATEMENT OF THE CASE

The Respondent agrees with the Petitioner's

Statement of the Case in terms of its rendition of the

relevant facts and the case's procedural history. To

the extent that the Petitioner has chosen to

improperly characterize or cast aspersioris on the

decisions and reasoning of both the Court of Appeals

and the arbitrator in the course of its Statement of

the Case, and to the extent that the Petitioner has

included argumentative matter therein, the

Respondent reserves its right to respond in the body

of its argument in opposition to the granting of the

writ of certiorari,

Vv

GROUNDS FOR DENYING THE WRIT

Review in this Court pursuant to a writ of

certiorari is not a matter of right, but is an

extraordinary remedy, subject to the proper exercise

of discretion by the Court. The writ should be

granted only where there are "special and important

reasons therefore." Supreme Court Rules, Rule 17.1.

There are no such reasons apparent here.

The Petitioner in the present case is actually

seeking to overturn not just the decision below, but

nearly thirty years of established federal precedent .

Those precedents stand for the premise that

collective bargaining arbitration awards should be

upheld and affirmed by the courts except in the most

extraordinary and compelling circumstances. See

ni teelworkers of America v, En rise Wheel

and Car Corp., 363 U.S. 593 (1960). This principle

was most recently reaffirmed and reinforced by this

Court in United Paperworkers International Union v,

Misco, U.S. ___, 108 S.Ct. 364 (1987). The

First Circuit's majority opinion, challenged herein, is

completely in accord with this Court's holding in

Misco. The majority of the Court of Appeals

reasoned, quite correctly, and in accord with the

original arbitration award, that it was clearly within

the arbitrator's authority to determine what penalty,

if any, should flow from the Union's failure to file an

initial grievance in a timely fashion, where the

collective bargaining agreement contained no

provisions mandating a waiver of rights in the event

of a late filing. Despite the Petitioner's rhetoric, a

review of the provisions of the parties’ collective

bargaining agreement makes it quite plain that there

was no "actual" language to be applied by the

arbitrator, "literally" or otherwise, which would

compel a different finding (Petition p. 8.) In order to

carry out his responsibilities the arbitrator was

required to draw inferences, come to logical

conclusions, and frame an appropriate remedy, based

on his cumulative experience in interpreting

hundreds of collective bargaining agreements. The

real danger to the collective bargaining process in

the present case does not arise out of the decision of

the Court of Appeals, but out of the Petitioner's

insistence on challenging the original arbitration

award. Litigation in this case has continued for more

than two years, since the original award issued, while

the Petitioner has steadfastly refused to submit the

parties' dispute to a hearing and decision on the

merits. Such prolonged litigation can only lead to a

breakdown of the entire collective bargaining

process, and pose a serious threat to the grievance

and arbitration procedures which have served labor

and management so well over the last fifty years.

The Respondent respectfully submits that the

Petition for a Writ of Certiorari should be denied, and

that the decision of the Court of Appeals should be

allowed to stand as a final and binding decision in

this matter.

ARGUMENT

A. THE COURT OF APPEALS DECISION IS IN

ACCORD WITH THE DECISIONS OF THIS

COURT, WHERE THE ARBITRATOR WAS

ACTING WITHIN THE SCOPE OF HIS

AUTHORITY IN RENDERING HIS AWARD

AND WHERE THE AWARD DRAWS ITS

ESSENCE FROM THE COLLECTIVE

BARGAINING AGREEMENT.

The scope of judicial review of collective

bargaining arbitration awards in the federal courts is

extremely narrow. This Court established the

parameters of that narrow scope of review with its

10

decisions in the Steelworkers Trilogy cases nearly

thirty years ago.! Any remaining questions

concerning the applicability of this narrow standard

of review to issues of procedural arbitrability,

including timeliness, were dealt with a few years

later in Wiley v. Livingston, 376 U.S. 543 (1964). In

Wiley, the Court held that questions concerning the

procedural prerequisites to arbitrability, including

the parties’ compliance with contractual time

limitations, are almost invariably intertwined with a

“consideration of the merits of the dispute.” The

Court held that:

Once it is determined...that the parties are

obligated to submit the subject matter of a

dispute to arbitration, "procedural" questions

which grow out of the dispute and bear on its

final disposition should be left to the

arbitrator.

Wiley v, Livingston, supra, at 557.

ly . i S | I f ° °

Manufacturing Co,, 363 U.S. 564 (1960); United

Steelworkers of America v. Warrior & Gulf Co,, 363

U.S. 574 (1960); , 363 U.S. 593 (1960); United

accleiadeeis ot Koauet eeceieien Whe i

Corp., 363 U.S. 593 (1960).

11

Since the Wiley decision, both this Court and the

lower federal courts have consistently held that

questions of procedural arbitrability, including issues

of timeliness and waiver, should be submitted first to

the arbitrator, and that arbitral decisions on such

matters are then subject to the same restricted

scope of review as are decisions on the merits. See

rating En Vv i il ae

406 U.S. 487 (1972); Ren Electronics v, Local 208,

LU.E., AFL-CIO, 665 F.Supp. 77 (D. Mass. 1987); Avco

Corp. v. Mitchell, 336 F.2d 289, (6th Cir. 1964);

Washington Hospital Center v, Local 722, S.E.1.U.,

746 F.2d 1503 (D.C. Cir. 1984) affg in part, rev'g in

part, 577 F.Supp 206 (D.D.C. 1983); International

Brotherhood of Electrical Workers v, Coval Electric

Corp., 576 F.Supp. 1128 (S.D. FLA. 1983).

Chauffeurs, Teamsters & Helpers, Local No. 765 v.

Stroehmann Bros. Co., 625 F.2d 1092 (3rd Cir.

1980); Operating Engineers Local 406 v, Austin Co.,

784 F.2d 1262 (5th Cir. 1986).

In those rare instances where the courts have

vacated arbitration awards because the arbitrator had

reached the merits despite the union's failure to

comply with explicit time deadlines, they have done

so only where there has heen a "clear failure to draw

the essence of the award from the Agreement."

12

Detroit Coil Co. v. Machinists, Lodge 82, 594 F.2d

575, (6th Cir. 1979). In the present case, as will be

discussed more fully below, the arbitrator committed

no such error. He did not exceed his authority under

the parties’ agreement, and he acted within the

scope of his inherent responsibility in framing an

appropriate remedy. See Enterprise Wheel and Car

Corp., supra, at 597. The Misco decision and a host

of precedents reaching back to this Court's seminal

decisions in the Steelworkers Trilogy mandate that

the Petition for a Writ of Certiorari should be denied,

and that the Court of Appeals decision affirming the

challenged arbitration award should be allowed to

stand as a final decision in this matter.

B THE CHALLENGED ARBITRATION AWARD

DRAWS ITS ESSENCE FROM THE PARTIES’

COLLECTIVE BARGAINING AGREEMENT,

AND IS WELL WITHIN THE MAINSTREAM OF

ARBITRAL DECISION MAKING ON

QUESTIONS OF PROCEDURAL

ARBITRABILITY AND TIMELINESS.

In his challenged Award, arbitrator Mark Irvings

found that the underlying grievance should be heard

on the merits despite the fact that it had been

3

untimely filed.2 He based that decision on his

interpretation of the explicit terms of the parties’

collective bargaining agreement, as well as on his

conclusions as to the logical inferences to be drawn

from those terms that were not included in the

agreement. In reaching this determination, the

arbitrator was clearly cognizant of possible

limitations on his authority pursuant to the terms of

the parties’ collective bargaining agreement. He

carefully reviewed the agreement looking for any

contractual provisions explicitly mandating default or

forfeiture for failure to comply with the filing

deadlines. He did not find any such provisions.

Rather, he found implicit in the terms of the

agreement an obligation that he carry out his

responsibilities to the parties by fashioning an

appropriate remedy. As arbitrator Irvings stated his

view of the problem facing him:

2 The grievance has never been heard on the

merits. The Petitioner has refused to proceed to the

second stage of the bifurcated hearing process,

while it has insisted on litigating the present

procedural issue to the highest judicial levels. The

grievant, Joyce Lucia, continues to teach at the

College as a part time faculty member, despite the

fact that there have been several full time openings

in her department.

14

Unlike some contracts, the parties' agreement

does not state that if the initial filing deadline

is missed the grievance is deemed waived.

Under such contracts, an arbitrator is without

authority to go beyond a rigid application of

the deadline and determine an appropriate

remedy for a contract breach. Where the

consequences of a missed deadline have not

been specified, however, an arbitrator is in the

same position as when considering any other

deviation from contractual requirements, be it

by the College, the Union, or an employee. An

arbitrator has the power to fashion a remedy

which is compensatory, not punitive. An

arbitrator must look at and respond to the

harm suffered by the College and the

motivation of, and advantage gained by, the

Union or an employee.

Opinion and Award, (p. A-31).

It is the arbitrator's reasoning, as set forth above,

which was crilical to the decision of the Court of

Appeals. This Court stated in Misco, that: "as long as

the arbitrator is even arguably construing or applying

the contract," his award should be upheld by the

reviewing court. 108 S.Ct. at 371. The arbitrator

clearly recognized that explicit contractual language

mandating forfeiture or waiver would limit his

jurisdictional authority and leave him with no

alternative but to rule that the grievance was non-

arbitrable due to the Union's untimely filing. See

Detroit Coil Co. v, Machinists Lodge 82, supra. He

also recognized, however, that in the absence of such

language, it was his responsibility to rule on

questions of procedural arbitrability, including

questions concerning timeliness and waiver, in

accord with accepted maxims of arbitral decision

making, as well as general principles of contractual

interpretation. See Wiley v. Livingston, supra;

Stroehmann Bros., supra; Washington Hospital Center

v. Local 722, supra; Operating Engineers Local 406 v.

Austin Co., 184 F.2d 1262 (5th Cir. 1986). His

decision in the present case represents neither a

novel nor an irrational approach to a frequently

encountered problem of contractual interpretation

and enforcement.3 It is inherent in the role of the

arbitrator that he musi be granted wide latitude in

interpreting the contract, and, especially, in

formulating remedies. As this Court has stated the

principle:

When an arbitrator is commissioned to

interpret and apply the collective bargaining

3 See Restatement (Second) of Contracts, Section 204

(Supplying an Omitted Essential Term), and Section

229 (Excuse of a Condition to Avoid Forfeiture)

(1984).

16

agreement, he is to bring his informed

judgment to bear in order to reach a fair

solution of a problem. This is especially true

when it comes to formulating remedies.

There the need is for flexibility in meeting a

wide variety of situations. The draftsmen may

never have thought of what specific remedy

should be awarded to meet a particular

contingency.

lworkers v. Enterprise Wheel & Car Corp..,

supra, at 597.

The Petitioner argues that in submitting the

grievance to arbitration it had not agreed to authorize

the arbitrator to fashion an appropriate remedy.

Such a contention represents the purest form of

sophistry. A right without a remedy is clearly no

right at all, and the arbitrator in the present case

was not operating in a vacuum when he heard this

case and rendered his award. Numerous arbitrators

have relied on the absence of explicit contractual

default provisions in reaching the merits of a dispute

despite lapses in timeliness. In doing so, they have

held that contractual time guidelines:

[A]re not to be treated as strict statutes of

limitation, unless so provided, but rather as

indicative of the need for prompt action, and

of the parties intention to agree that stale

claims shall not be pressed.

17

Kellogg Co., 71 LA 494, 496 (Hon, 1978),

quoting Patterson-Sargent Co., 23 LA 21, 23

(Willcox, 1954).

In arriving at similar conclusions, different

arbitrators have relied on a variety of rationaies,

including: simple maxims of equity ("equity abhors a

forfeiture"), Township of Neville v. PA, 75 LA 668

(Freeman, 1980): Bogalusa Community Medical

Center, 84 LA 978 (Nicholas, 1985); basic principies

of contract law, Kellogg Co., supra, at 496; and

various extenuating or mitigating factors, such as

intervening holidays and disruptions in the normal

work schedule, Kent County, MI, 75 LA 948 (Kruger,

1980). Still other arbitrators have found that the

absence of a contractual waiver clause in and of itself

required them to exercise their inherent authority to

decide the proper impact of missed deadlines. See

International Paper Co., 82 LA 306 (Williams, 1984);

Edward C. Levy Co., 81 LA 529 (Borland, 1983); G &

H_ Transportation, 75 LA-644 (Bullen, 1980).

In attempting to rebut this argument the

Petitioner has relied heavily on the reasoning of the

district court, and the claim that the arbitrator had

exceeded his authority and violated the express

language of the contract in making his award. That

reliance is misplaced and unconvincing. The district

18

court's opinion and rationale, like the reasoning of

the Petitioner, actually border on the oxymoronic.

The court first finds that the award "unquestionably

modifies the express and precise language of Article

XI," but in the next sentence admits that although

"the Agreement does not explicitly spell out that

failure to file on time is deemed to be a waiver," such

a waiver "is, at least implicit in the requirement...."

(p. A-21). Of course, where the agreement does not

explicitly "spell out" a specific penalty, and where

the issue is whether waiver is "implicit" in the terms

of the agreement, then by definition there is no

"express and precise" language which could be

modified by the arbitrator. In such a situation, it is

clearly up to the arbitrator to draw the proper

inferences and determine what is "implicit" in the

language of the agreement, and it is incumbent upon

the reviewing courts to affirm the arbitrator's

determination if it is even "arguably" correct. See

Misco, supra. It is clear that the district court chose

to substitute its judgment for that of the arbitrator in

determining what inferences should be drawn from

the "actual" language of the agreement. The Court of

Appeals acted in accord with applicable precedent

when it recognized this error by the court below,

19

reversed the district court judgment, and affirmed

the original arbitration award.

In conclusion, the challenged arbitration award

clearly "draws its essence" from the contractual

provisions bargained for by the parties, including

both what is contained and what is not contained, in

the collective bargaining agreement. That reasonable

arbitrators, and reasonable judges, have agreed with

the reasoning of the challenged award is amply

demonstrated by the decisions cited above. The

arbitrator in the present case was simply performing

his accepted function in interpreting the collective

bargaining agreement and determining the intent of

the parties. The arbitrator's finding that the

underlying grievance was arbitrable on the merits

represents a reasonable exercise of his authority

under the parties' collective bargaining agreement,

and the Court of Appeals correctly affirmed the

arbitrator's ruling pursuant to this Court's decision in

Misco, supra.

20

C THE PETITIONER'S ARGUMENTS MISSTATE

THE DECISION OF THE COURT OF APPEALS

AND ARE BASED ON A MISREADING AND

MISINTERPRETATION OF THIS COURT'S

DECISION IN MISCO.

In arguing for the granting of a writ of certiorari,

the Petitioner has totally miscast the decision of the

Court of Appeals, and misinterpreted Misco ina

manner that threatens the continued viability of the

arbitral process in the collective bargaining arena.

The Petitioner alleges that the Court of Appeals

committed reversible error by “taking the Supreme

Court at its word," (Petition, p. 9), while it equates

the court's citation to applicable precedent with

"cast(ing) the blame." (Petition, p. 9). This

represents a novel form of legal reasoning,

considering the basic nature of common law

jurisprudence in the United States over the last two

hundred years, and certainly this argument must be

rejected.

Moreover, nothing in the Court of Appeals'

decision supports the Petitioner's claim that in

reaching its decision the court below was "casting

blame," acting "against its better judgment," or felt

21

"compelled by this Court to act in defiance of the

logical reading of clear contractual language," as

alleged by the Petitioner (Petition, p. 9). In their

opinion, the majority of the Court of Appeals stated

the perfectly correct view that, under Misco, “any

‘exception’ to the normal rule (that forbids the court

to find an arbitrator's interpretation outside the

authority delegated to him by the contract) is

extremely narrow." (p. A-3) They affirmed the

arbitrator's award, and reversed the decision of the

district court, because the arbitrator's decision was

clearly "arguably" correct. They supported their

decision by framing a "plausible argument" that

favored the arbitrator's interpretation of the

collective bargaining agreement (p. A-3). And they

concluded their opinion by stating that: "(W)hether

we would find these arguments convincing were it up

to us to interpret the contract is beside the point...,"

since "(wje can imagine some judges or arbitrators

accepting these arguments (without stretching the

imagination v r)." (p. A-6), (emphasis added).

See Enterprise Wheel and Car Corp., supra.

The Petitioner's claim that the reasoning of the

Court of Appeals constitutes the establishment of a

new, "plausibility" standard is totally without merit.

This argument ignores the fact that "arguably" and

22

"plausibly" are used virtually synonymously and totally

interchangeably in both legal decisions and in normal

English conversation. The court below could not

have better applied the Misco "“arguability" standard

than by determining whether or not there was a

“plausible argument" that would support the

arbitrator's decision. (p. A-3) In fact, such reasoning

by a reviewing court must be found to be at the heart

of any determination under Misco, and is hardly a

vulnerable subject of criticism in the present case.

The dissent below, and the Petitioner, both claim to

be concerned with the misuse and abuse of language,

but the Petitioner's lengthy attempts to distinguish

between the "plausible" and the "arguable" must raise

far more serious questions as to whether "reason

must still rule the use and intent of our juridical

language" than does the reasoning of the arbitrator,

or the majority opinion ef the Court of Appeals.

(Compare, Petition, p. 13; Dissent p. A-8). The court

below correctly applied this Court's teaching in

Misco in reaching its decision to affirm the

arbitration award. The Petitioner's arguments are

without merit, and the Petition for a Writ of

Certiorari should be denied.

23

VI

CONCLUSION

The First Circuit Court of Appeals decision

affirming the original arbitration award and reversing

the judgment of the district court decision is clearly

correct and is mandated by this court's decision in

Misco, as well as by earlier precedents dating back to

the Steelworkers Trilogy. The arbitrator's opinion is

well reasoned, and draws its essence from the

parties’ collective bargaining agreement, and from

his interpretation of the provisions of thai

agreement. Neither the arbitration award, nor the

decision of the Court of Appeals, pose any threat to

the collective bargaining process, and both are in

accord with the overwhelming weight of precedent

on the questions at issue. On the facts of this case,

there is no basis for granting the petitioned for writ

of certiorari, or for reversing the decision of the

Court of Appeals.

The Respondent would respectfully suggest that

the Court deny the Petition for a Writ of Certiorari.

The arbitration award should be allowed to stand as

the final and binding decision it was iitended to be,

24

pursuant to the original intent of the parties and the

provisions of their collective bargaining agreement.

Respectfully submitted,

Jeffrey W. Jacobsen

Associate Counsel

Massachusetts Federation

of Teachers, AFT, AFL-CIO

216 Tremont Street

Boston, MA 02116

(617)423-3342

Date Tf O 184

25