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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 810

## Text

(»)

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

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