Opposition — Morelock v. NCR Corp.

Supreme Coug, U. &

“. wEILEQ

| UG 26 1977

In The .

SUPREME COURT OF THE UNITED SPATES <%=

OCTOBER TERM, 1977

No. 77-172

HUBERT MORELOCK, ET AL.,

Petitioners,

Vs.

THE NCR CORPORATION,

Respondent.

BRIEF IN OPPOSITION TO THE PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

Thomas J. Harrington, Esq.

Gordon H. Savage, Esq.

William R. Neale, Esq.

PICKREL, SCHAEFFER AND

EBELING

2700 Winters Bank Tower

Dayton, Ohio 45402

and

Robert E. Signom, II, Esq.

Associate General Counsel

THE NCR CORPORATION

1700 South Patterson Boulevard

Dayton, Ohio 45479

Counsel for Respondent.

COURT INDEX PRESS, INC. — 2/5 E. Ninth Street, Cincinnati, Ohio 46202 — (5/3) 241-1450

TABLE OF CONTENTS

COUNTERSTATEMENT OF THE QUESTION

PRESENTED

COUNTERSTATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT:

I. There is no final appealable order.

II. There is no merit to a further appeal upon

the same basis as other cases already before

the Court

III. A question of substance is not presented.

IV. The decision of the Court is not in conflict

with the other Circuits.

CONCLUSION

Page

TABLE OF CASES

Coev. Armour Fertilizer Works, 237 U.S. 413 (1915)

F.T.C. v. American Tobacco Co., 274 U.S. 543

(1927)

Gulf Refining Company v. U.S., 269 U.S. 125 (1925)

Haseltine v. Central National Bank, 183 U.S. 130

(1901)

Lorillard v. Pons, Case No. 76-1346, 44 U.S. L.

Week 3840

Morelock et al. v. NCR Corp., 546 F.2d 684, 690

NLRB vy. Pittsburgh SS Company, 340 U.S. 498

(1951) 7

North Dakota State Board of Pharmacy vy. Snyders

Drug Stores, Inc., 414 U.S. 156 (1973)

Rice v. Sanger, 144 U.S. 197 (1892)

Rogers v. Exxon, 550 F.2d 834 (3rd Cir. 1977)

Scofield v. National Labor Relations Board, 394 US.

423 (1969)

Slaken v. O'Connor, 278 U.S. 61 (1928)

Smith vy. Adams, 130 U.S. 167 (1889)

U.S. v. Krall, 174 U.S. 385 (1899)

Wilson v. Republic Iron and Steel — 257

U.S. 92 (1921)

Page

6

6, 7, 8

oo oOo Oo Dm

11.

TABLE OF STATUTES

Labor-Management Relations Act of 1947, as

amended, 29 U.S.C. Sections 141, et seq.

Age Discrimination in Employment Act, 29 U.S.C.

Sections 626 (b) and (c)

OTHER AUTHORITIES

Supreme Court Rule 19 (d)

Federal Rule of Civil Procedure 52

Page

as

“I

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-172

HUBERT MORELOCK, ET AL.,

Petitioners,

vs.

THE NCR CORPORATION,

Respondent.

BRIEF IN OPPOSITION TO THE PETITION

FOR A WRIT OF CERTIORARI.TO THE

UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

Respondent, NCR Corporation, respectfully urges that

the Petition for a Writ of Certiorari filed herein be denied.

—

COUNTERSTATEMENT OF THE

QUESTION PRESENTED

Are the Petitioners, in a privately brought action arising

under the Age Discrimination in Employment Act, entitled

as a matter of right to a trial by jury?

COUNTERSTATEMENT OF THE CASE

The Petitioners are and were Development Technician

employees of the Respondent, working at Respondent's

Dayton, Ohio, facilities. Petitioners were initially mem-

bers of a collective bargaining unit represented for purposes

of collective bargaining by a labor organization pursuant

to the provisions of the Labor-Management Relations Act

of 1947, as amended, 29 U.S.C. Sections 141, et seq.

Initially, these Development Technician employees were

in an “all employee’ bargaining unit. On September 1,

1964, the National Labor Relations Board divided this “all

employee’ unit into two separate and distinct bargaining

units — an “ofhce and technical’ employees bargaining

unit, and a “production and maintenance” employees bar-

gaining unit. Petitioners became part of the office and tech-

nical employees unit and continued to be represented by the

same labor organization which had represented them prior

to the establishment of the two bargaining units. As a

result of the 1964 collective bargaining negotiations with

this labor organization, the new vocation (a collection of

related job classifications) of Development Technician was

established in the collective bargaining agreement. Then,

pursuant to a National Labor Relations Board election on

September 10, 1971, this labor organization was decertified.

Following September 10, 1971, the employees in the office

and technical employees bargaining unit were not repre-

sented by any labor organization. Respondent issued and

implemented a “Handbook for Office and Technical Per-

sonnel” in place of the expired collective bargaining agree-

ment. This Handbook contained provisions which encom-

passed various personnel policies applicable to Petitioners,

including such items as seniority, transfer, promotion, re-

duction in force, recall and separation. The seniority

|

3

system provided in the Handbook was identical in terms

and application to the seniority system which had evolved

through negotiations during the period when office and

technical employees were represented by a labor organiza-

tion.

In administering this seniority system, the Respondent

maintained seniority records for each employee and each

job vocation within the office and technical employees unit.

The employees’ seniority listings were not maintained on

any basis related to the age of an individual, and the age

or the birth date of any individual was not recorded on the

seniority listing. Clearly, the vocational seniority system

was premised upon service both with the Respondent and

in the vocation, and was not based on the chronological age

of the individual. Neither the Development Technician

vocation nor the vocational seniority system was developed

with any consideration whatsoever given to the age of the

employees. In point of fact, two of the Petitioners were

over age 40, and three of the Petitioners were under age 40

at the time they initially entered the Development Tec ini-

cian job vocation, and the same mixture existed in virtually

all job vocations."

Under the vocational seniority system which evolved in

the course of collective bargaining, and which was contin-

ued in effect after September 10, 1971, an individual did

not necessarily follow the reverse course of promotion dur-

ing layoft. The reason for this resulting is that a job voca-

tion encompasses a group of job classifications. However,

it is vocational seniority, irrespective of the chronological

age, which determines the course of layoff.

Commencing October 13, 1972, lack of work necessitated

a reduction in the total work force in the office and techni-

' The only exceptions to this were the vocations with too few em-

ployees to indicate a statistically accurate distribution.

4

cal employees’ unit. From that date until June 26, 1973,

twenty-one (21) of the Development Technician employ-

ees were laid off from that job vocation, including three (3)

of the Petitioners. The work to which they were assigned

was that work allowed them by their vocational seniority,

and was no more or less ““demeaning"’ than that performed

by non-Petitioners. On June 26, 1973, there were six (6)

individuals remaining in this job vocation. Of the twenty-

one (21) individuals laid off from this job vocation, four-

teen (14) were, at the time of their layoff, under age 40

and seven (7) were over the age of 40. The reductions

which were occurring affected the entire work force of the

Respondent's Dayton, Ohio, facilities. For example, in

1970, the total employment at the Dayton facilities was

over 21,000. In 1975, at the time of trial in the District

Court, there were approximately 5500 employees at the

Dayton facilities.

It is likewise uncontroverted that even after these sub-

stantial reductions, there were employees both over and

under the age of 40 in virtually all vocations. In June,

1973, there were 812 employees in the office and technical

employees unit, 379 of whom were over the age of 40, and

433 of whom were under the age of 40. At that time,

eleven (11) of the eighteen (18) employees in the Develop-

ment Technician vocation were over the age of 40.

After the initial Complaint in this matter was filed in

the District Court, Respondent filed a Motion to Strike

Petitioners’ jury demand, which was denied (Appendix E,

F to Petitioners’ Petition for Writ of Certiorari). There-

after, the matter was tried to the jury, which returned a

verdict for the Petitioners. Respondent filed both a Mo-

tion for Judgment non obstante verdicto and a Motion for

a New Trial, which were granted by the District Court

(Appendix C, D to the Petition). The District Court

5

found, as a matter of law, that no substantial evidence sup-

ported the Petitioners’ position, and, therefore, granted the

Judgment n.o.v. Obviously, the District Court concluded

that the vocational seniority system was a bona fide seniority

system under the Age Discrimination Employment Act.

Petitioners appealed on the merits to the Sixth Circuit

Court of Appeals, and Respondent cross-appealed on the

issue of the Petitioners’ right to a jury trial. The Sixth

Circuit Court of Appeals determined that no constitutional

right to a jury trial existed, and directed the District Court

on remand to enter findings of fact and conclusions of law

in accordance with Federal Rule of Civil Procedure 52 (a)

(Appendix A, B to the Petition) .

REASONS FOR DENYING THE WRIT

I. There is no final appealable order.

Rule 19 of this Court’s Rules provides that there must

be a “final appealable order’’ prior to invocation of a re-

quest to this Court to grant jurisdiction. As stated in

Slaken v. O’Connor, 278 U.S. 61 (1928), the judgment

must be final under Rule 19(d). And the face of the

Order is the test of its finality, Gulf Refining Company v.

U.S., 269 U.S. 125 (1925). Specifically, in this matter,

the United States Court of Appeals for the Sixth Circuit

determined:

“Accordingly, we remand this case to the District

Court for findings of fact and conclusions of law in

accordance with Rule 52, Fed. R. Civ. P.”” 546 F.2d

684, 690.

The Court further declined to decide any of the appealed

issues with respect to the merits. Its footnote clearly estab-

6

lishes that. Also, no “perishable’’? constitutional issue is

involved as a jury trial was already had and Judgment

n.o.v. issued. Hence, a reversal and remand does not create

a final appealable order.

An order remanding a case for findings of fact and con-

clusions of law is not a final order because the Record is

incomplete until the District Court provides compliance

with Rule 52 as directed. Furthermore, there has been no

final decision on the merits by the Sixth Circuit. Wilson

v. Republic Iron and Steel Company, 257 U.S. 92 (1921) ;

U.S. v. Krall, 174 U.S. 385 (1899); Coe v. Armour Fer-

tilizer Works, 237 U.S. 413 (1915); Haseltine v. Central

National Bank, 183 U.S. 130 (1901) ; Smith v. Adams, 130

U.S. 167 (1889); Rice v. Sanger, 144 U.S. 197 (1892) ;

Scofield v. National Labor Relations Board, 394 U.S. 423

(1969) .

II. There is no merit to a further appeal upon

the same basis as other cases already before

the Court.

This Court has granted certiorari in Lorillard v. Pons.*

The Brief requesting the writ of certiorari in the Lorillard

case stated that the courts throughout the land were await-

ing determination of the jury trial issues with respect to the

Age Discrimination in Employment Act, 29 U.S.C. Section

626(b) and (c). In addition, it was asserted that the

Lorillard case was in conflict with the decision of the Sixth

Circuit Court of Appeals in the instant matter with respect

2See, North Dakota State Board of Pharmacy v. Snyders Drug

Stores, Inc., 414 U.S. 156 (1973).

3Case No. 76-1346, certiorari granted on June 27, 1977, 44 USS.

L. Week 3840.

-

/

to the jury trial issue. It is a traditional basis of the discre-

tionary writ of certiorari that the Court decide issues of

particular substance only once. As this Court stated in

NLRB vy. Pittsburgh SS Company, 340 U.S. 498, 502

(1951) :

“Certiorari is granted only ‘in cases involving princi-

ples the settlement of which is of importance to the

public as distinguished from that of the parties, and

in cases where there is a real and embarrasing conflict

of opinion and authority between the Circuit Courts

of Appeal.’ "’

The issues involved herein, in accordance with the

request for certiorari made by Petitioners, deal solely with

a jury trial under the Age Discrimination in Employment

Act, 29 U.S.C. Section 626(b) and (c). Hence, because

the issue is better presented in the Lorillard case, there is

no necessity in granting a second writ in this case.

Ill. A question of substance is not presented.

Basically, this Court cannot reach the merits of this

case insofar as who wins and who loses. The case was tried

to a jury before the District Court, and the jury verdict

issued for Petitioners. However, the District Court granted

Judgment n.o.v. and entered judgment on behalf of Re-

spondent. The Sixth Circuit Court of Appeals sustained

the Respondent's cross-appeal on the issue of the trial by

jury and did not consider the merits of this case. Therefore,

the substantial issue of who wins and loses and assessment

of evidence is not before the Court. NLRB vy. Pittsburgh

SS Company, supra; F.T.C. v. American Tobacco Co., 274

U.S. 543 (1927).

Whether the Petitioners are entitled to a trial by jury is

not relevant to the ultimate outcome of this case. Hence,

8

issuance of the writ of certiorari herein will be a futile

act insofar as the resolution of the merits of this case.

1V. The decision of the Court is not in conflict

with the other Circuits.

Because the District Court in this matter tried the case

to a jury, it is submited that the decision by the Fourth

Circuit Court of Appeals in Lorillard v. Pons where a jury

trial was denied is opposite. This case was decided upon

a Judgment n.o.v. and, thus, is not contrary to the Lorillard

decision.

Similarly, there is no conflict with Rogers v. Exxon, 550

F.2d 834 (3rd Cir. 1977), as that case dealt with a pension

plan as opposed to a seniority system, and was remanded for

deletion of the “pain and suffering” issues given to the

jury which is the very issue Petitioners seek to tack to

their jury issue before this Court. There is no conflict

as neither the Sixth nor the Third Circuits allow such

consequential damages under violation of the Age Dis-

crimination in Employment Act.

CONCLUSION

For the reasons set forth above, Respondent requests that

this Court deny the Petitioners’ Petition for a Writ of Certi-

orai to the United States Court of Appeals for the Sixth

Circuit.

Respectfully submitted,

Thomas J. Harrington, Esq.

Gordon H. Savage, Esq.

William R. Neale, Esq.

PICKREL, SCHAEFFER AND

EBELING

2700 Winters Bank Tower

Dayton, Ohio 45402

and

Robert E. Signom, II, Esq.

Associate General Counsel

THE NCR CORPORATION

1700 South Patterson Boulevard

Dayton, Ohio 45479