Opposition — Freeman v. O'Neal Steel, Inc.

Supreme Court, U.S.

FILED

No. 79-1900 SER 1G 1980

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1980

RicHarp JAMES FREEMAN,

Petitioner,

v.

O’Neat STEEL, Inc. anp UnitreED STEELWORKERS OF AMERICA,

Respondents.

MEMORANDUM OF RESPONDENT UNITED

STEELWORKERS IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Micuar. H. GotresMan

Rosert M. WEINBERG

Davin M. SruperMAn

Bredhoff, Gottesman, Cohen,

Chanin, Weinberg & Petramalo

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

GrorcE LonGsHORE

Cooper, Mitch & Crawford

409 N. 21st Street

Birmingham, Alabama 35203

Attorneys for Respondent United

Steelworkers of America

303

|

TABLE OF AUTHORITIES

Page

CASES:

Amalgamated Ass’n of Motor Coach Employees v.

Lockridge, 4038 UB. 274 CGT) ccscscrcesssnecvcsiesnscssenssosecesen 1

Burchfield v. Steelworkers, 577 F.2d 1018 (5th Cir.

FOTED siscssicrcsarssinteiibinsnintindenitintcipiitieagaiaiaiaaaaa 3

Bures v. Houston Symphony Socvrety, 503 F.2d 842 (5th

RES TIT E) ccicseienessnrsoineceseapionsiineniannannaiingaaipeelaacinanan 4

Coe v, Rubber Workers, 571 F.2d 1349 (5th Cir. 1978) 3

Connally v. Transcon Lines, 583 F.2d 199 (5th Cir.

STE) seinthinsisnssiairnicuiiinssnclnmnnssientoamnteaabeiansmmaae 3

Cox v. C. H. Masland & Sons, 607 F.2d 138 (5th Cir.

PUY <:sewcseokaesevnesnilisaninevconspesbhidenpiubsiaastarmamaa maaan 3

Encina v. Tony Lama Boot Co., 448 F.2d 1264 (5th Cir.

TTD <xsssntsinitnsciviisesicidaiieatibiacteniadcoaasncsnabeiaipeaamaadaiaaaaan 3

Franklin v. Crosby Typsetting Co., 568 F.2d 1098 (5th

Cir.), cert. dented, 439 U.S. 847 (1978) ........erccccsscescees 3

Harris v. Chemical Leaman Tank Lines, 437 F.2d 167

CO CIE, TITY pascssosstnscnssinsaticsainiecistabienslepneumetadnanicteedaaaiia 3

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554

ERT) icnccivsohtvisemadeiecsenenmnspeeibaastnnaeniadamanaaan 1,3

IBEW v. Foust, 442 U.S. 42 (1978) ..cccsvcsssccccesessesvoonnesssereas 1,2

Lomax v. Armstrong Cork Co., 433 F.2d 1277 (5th Cir.

PEPE) sisnceceinienccinassnsttomesisnsisiesniniiainebiebumbndianaaidaa alana 3, 4

Lowe v. Pate Stevedoring Co., 558 F.2d 769 (5th Cir.

TIED sénishsinsansnsenscisipncenmneeinanictlacaisedaceinmeiaedaonasdadnamdiaaaine 3

Mumford v. Glover, 503 F.2d 878 (5th Cir. 1974) .......... 2,3

Robesky v. Quantas Empire Airways, Ltd., 573 F.2d

BEE CUE Kae. BCD | seiesissasccsccineisesomesnecnntniaan 6

Page

Ruzika v. General Motors Corp., 523 F.2d 306 (6th Cir.

sas esevenenesbsnesncnsovovosonconscnessvepanes 6

Sanderson v. Ford Motor Co., 483 F.2d 102 (5th Cir.

TTI nace dsccslenhoesensenbedonenenenendsosssesoesesees 3, 4

Soto Segarra v. Sea Land Service, Inc., 581 F.2d 291

ls oleae asdsnstbidaieesovassoovesehoosesnoventnssones 6

Tedford v. Peabody Coal Co., 533 F.2d 952 (5th Cir.

RTI en cb cankessnecdbcowevavessseusuvonensssusneessasssonvece 3,4

Turner v. Air Transport Dispatchers Ass’n, 468 F.2d

rl canscrmasivelssdovicnnssnontacsnenevensessvens 3

Vaca Vv. Stipes, 386 U.S. 171 (1967) .......cccccccrorseeees 1, 2, 3, 4,

5)

Watson v. INT Teamsters, 399 F.2d 875 (5th Cir. 1968) 3

Willets v. Ford Motor Co., 583 F.2d 852 (6th Cir. 1978) 6

il

No. 79-1900

Supreme Court of the United States

OCTOBER TERM, 1980

RicHarp JAMES FREEMAN,

Petitioner,

v.

O’Neax STEEL, Inc, AND Untrep STEELWORKERS OF AMERICA,

Respondents.

MEMORANDUM OF RESPONDENT UNITED

STEELWORKERS IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

This case involves nothing more than the application of

settled rules of law to a unique set of facts—facts which

petitioner ignores in part and misstates in part in his peti-

tion for a writ of certiorari.’ The rules were settled by this

Court in Vaca v, Sipes, 386 U.S. 171 (1967) and have been

reaffirmed by the Court on several occasions since. E.g.,

Amalgamated Ass’n of Motor Coach Employees v. Lock-

ridge, 403 U.S, 274 (1971) ; Hines v. Anchor Motor Freight,

Inc., 424 U.S. 554 (1976); IBEW v. Foust, 442 U.S. 42

(1978). The court below faithfully applied Vaca and its

progeny to the particular facts of this case. Nothing in the

decision below warrants plenary review by this Court.

1 To place before this Court all relevant facts, we are filing with

this petition one copy of the appendix that was filed in the court

of appeals and which contains most of the trial transcripts and

exhibits. That appendix is cited herein as ‘‘C.A. App. ......... ’””? The

appendix to the petition for a writ of certiorari is cited as ‘‘ Pet.

BI pitscints is

2

Judge Kravitch’s opinion for the court below begins by

recognizing, as this Court has repeatedly held, that ‘‘ As

exclusive collective bargaining agent for [petitioner], the

union had a statutory duty to fairly and without hostility

or discriminetion represent his grievance, Vaca v. Sipes,

386 U.S. 171 (1967)’’ (Pet. App. A-3). At the same time

Judge Kravitch recognized, as this Court also has held,

that the union’s duty ‘‘is not a ministerial one of satisfying

each employee’s demand at all costs’’; rather, the union

must ‘‘exercise judgment and discretion in its representa-

tive capacity’’ (Jd.). As this Court recently put it:

[U]nion discretion is essential to the proper function-

ing of the collective-bargaining system. Union super-

vision of employee complaints promotes settlements,

avoids processing frivolous claims, and strengthens

the employer’s confidence in the union . . . Without

these screening and settlement procedures ... the

costs of private dispute resolution could ultimately

render the system impracticable. [[BEW v. Foust,

supra, 442 U.S. at 51.]

Thus Judge Kravitch stated ‘‘[t]he key question’’ here as

follows: ‘‘whether the union in this case abused its discre-

tion and acted in an arbitrary or discriminatory manner or

in bad faith when it decided not to proceed with arbitration

of the plaintiff’s grievance’’ (Pet. App. at A-3).?

2 The decision below is consistent not only with Vaca but with

the prior fair representation decisions of the Fifth Circuit, deci-

sions which in no way evidence a ‘‘consistent[] refus[al] to follow

Vaca v. Sipes and Hines v. Anchor Motor Freight, Inc.,’’ as peti-

tioner alleges (Pet. at 3). To the contrary, the Fifth Circuit has

uniformly recognized, as i+ did here, that ‘‘[t]here is a duty of

fair representation in all Union dealings implicit in the Congres-

sional grant to unions .. . of the exclusive power to represent all

employees in the collective bargaining unit.’’ Mumford v. Glover,

503 F.2d 878, 882 (1974) (Goldberg, J.). The court has explained

that ‘‘the duty is defined by three distinct standards of conduct’’:

the ‘‘arbitrary,’’ ‘‘discriminatory,’’ and ‘‘bad faith’’ standards

3

The district court, of course, had framed the issue before

it in similar terms (Pet. App. B-5). But in addressing that

established in Vaca. Sanderson v. Ford Motor Co., 483 F.2d 102,

110 (5th Cir. 1973) ; Tedford v. Peabody Coal Co., 533 F.2d 952,

957, n.6 (5th Cir. 1976). And with respect to the grievance pro-

cessing context—the context in which this case arises—the court

has stated that ‘‘It is beyond doubt that the duty of fair represen-

tation includes an obligation to investigate and to ascertain the

merit of employee grievances,’’ Turner v. Air Transport Dispatch-

ers Ass’n, 468 F.2d 297, 299 (5th Cir. 1972), and that ‘‘a union

may not arbitrarily ignore a meritous grievance or process it in a

110 (5th Cir. 1973); Tedford v. Peabody Coal Co., 533 F.2d 952,

perfunctory manner,’’ Lomax v. Armstrong Cork Co., 433 F.2d

1277, 1281 (5th Cir. 1970). Thus in Lowe v. Pate Stevedoring Co.,

558 F.2d 769, 771 n.2 (5th Cir. 1977), the court reversed a district

court decision granting j.n.o.v. to a union, finding that ‘‘the jury

... could reasonably have concluded that the union acted in ‘‘bad

faith by perfunctorily processing Lowe’s grievance. Such perfunc-

tory treatment of a grievance constitutes a breach of the duty of

fair representation. ’’

Petitioner lists fourteen cases which, he claims, show that ‘‘The

court below has consistantly [sic] failed to uphold findings of fair

representation’’ (pet. at 12). In fact, in the overwhelming majority

of the cases cited by petitioner the findings were precisely to the

contrary, and the appellate court merely affirmed the district

court’s findings, twice by order, Burchfield v. Steelworkers, 577

F.2d 1018 (5th Cir. 1978), and Harris v. Chemical Leaman Tank

Lines, Inc., 437 F.2d 167 (5th Cir. 1971) ; three times by per curiam

opinions, Coe v. Rubber Workers, 571 F.2d 1349 (5th Cir. 1978) ;

Franklin v. Crosby Typesetting Co., 568 F.2d 1098 (5th Cir.), cert.

denied, 439 U.S. 847 (1978) ; Encina v. Tony Lama Boot Co., 448

F.2d 1264 (5th Cir. 1971); and four times by opinions authored

by, respectively, Chief Judge Brown, and Judges Rubin, Clark,

and Simpson, Connally v. Transcon Lines, 583 F.2d 199 (5th Cir.

1978) ; Cox v. C. H. Masland & Sons, 607 F.2d 138 (5th Cir. 1979) ;

Turner v. Air Transport Dispatcher Ass’n, supra; and Watson v.

INT Teamsters, 399 F.2d 875 (5th Cir. 1968). The remaining cases

petitioner cites include one in which the court of appeals reversed

a judgment dismissing a fair representation claim and remanded

4

issue, the district court had placed great weight on a factor

which the court of appeals held is legally irrelevant under

Vaca: the district court’s own view of the merits of pe-

titioner’s grievance. And the court of appeals also held

that, as a matter of law, the remaining evidence would not

be sufficient to enable the district court to conclude that the

union breached its duty here. Accordingly, the appellate

court reversed the district court’s decision and directed

that judgment be entered for the union. As we proceed to

show, the twin holdings of the court of appeals on which its

judgment rests closely parallel Vaca, are entirely correct

in their own right, and are not worthy of review by this

Court.

1. In determining that the union had breached the duty

of fair representation, the district court reasoned that since,

in its view, petitioner ‘‘possessed an excellent chance of

winning in arbitration’’ it ‘‘was cer‘ainly arbitrary for the

Union not to proceed at least to the point of determining

who the actual arbitrator would have been’’ (Pet. App.

B-5). But in Vaca this Court explicitly rejected that ap-

proach to determining when the duty of fair representation

has been breached. The Vaca Court explained that the

successful operation of a grievance-arbitration prvcedure

requires that a union be free to settle grievances short of

the case for a trial on the claim, Mumford v. Glover, supra; one in

which the court affirmed a judgment dismissing a § 301 action

because plaintiff had failed to allege a breach of the duty, Lomaz

v. Armstrong Cork Co., supra; one in which the court remanded

for a new trial after holding that the district court had erred in

directing a verdict in plaintiff’s favor, Sanderson v. Ford Motor

Co., supra; and one in which the court overturned a preliminary

injunction against a discharge on factual and legal grounds, Bures

v. Houston Symphony Society, 503 F.2d 842 (5th Cir. 1974). In

only one case was a final judgment in plaintiff’s favor reversed,

principally on legal grounds, Tedford v. Peabody Coal Co., supra.

In none of the fourteen cases was there a dissent.

5)

arbitration lest the grievance machinery become so ‘‘over-

burden[ed]’’ as to ‘‘prevent it from functioning success-

fully.’’ Jd. at 192. And the Vaca Court found that this

freedom to settle grievances would be substantially im-

paired ‘‘if a union’s decision that a particular grievance

lacks sufficient merit to justify arbitration would constitute

a breach of the duty of fair representation because a judge

or jury later found the grievance meritorious.’’ Id. at 192-

93. Accordingly, Vaca held that the lower court had erred

in sustaining the jury verdict against the union in that case

on the basis of evidence from which the jury could have

concluded that, in its view, the plaintiff’s grievance, which

had been withdrawn before arbitration, was meritorious.

Id. at 193. Thus, the court of appeals here, in likewise

holding that the district court had ‘‘misapplied the test

used to determine whether a union’s failure to complete

arbitration is a breach of its duty’’ (Pet. App. at A-2),

was simply following the teaching of Vaca, This aspect of

the decision below therefore presents no question worthy

of this Court’s review.

2. Having removed this legally erroneous prop from the

district court’s decision, the only remaining issue for the

court of appeals to decide was whether the district court’s

judgment could stand on the legs that were left, 2.e., to

determine whether, as a matter of law, the remaining evi-

dence would support a conclusion that the union had

breached its duty. That is precisely the inquiry this Court

undertook in Vaca, after rejecting the lower court’s legal

theory. And the Fifth Circuit’s conclusion here was the

same as the conclusion reached by this Court in Vaca: ‘‘as

a matter of federal law the evidence does not support a

verdict that the Union breached its duty of fair representa-

tion.’’ 386 U.S. at 193.

Of necessity, the appellate court’s determination on this

question is entirely dependent upon the particular facts of

this case—facts which are unique and are not likely to

6

recur.® That is, of course, reason enough for denying the

petition for a writ of certiorari. But as we now show, the

8’ For the same reason, the decision below is not, as petitioner

urges (Pet. at 8), in conflict with decisions of other circuits—deci-

sions which depend on facts quite different from the facts involved

here, and which therefore raised questions quite different from the

question presented by this case. In Ruzika v. General Motors Corp.,

523 F.2d 306 (6th Cir. 1975), for example, the issue was whether

the union’s inadvertent failure to appeal a grievance to arbitration

in a timely fashion breached the duty of fair representation; that

question is not implicated here since, as we show, the union made

a deliberate judgment that petitioner’s grievance did not merit

presentation in arbitration. Nor does this case present the question

involved in Robesky v. Quantas Empire Airways, Ltd., 573 F.2d

1082 (9th Cir. 1978), in which the court considered whether the

union breached its duty by failing to advise plaintiff, before she

decided whether to accept an offer of reinstatement without back

pay, that the offer provided plaintiff her only chance of securing

her job since her grievance already had been withdrawn. And while

Soto Segarra v. Sea Land Service, Inc., 581 F.2d 291 (1st Cir.

1978) and Willets v. Ford Motor Co., 583 F.2d 852 (6th Cir. 1978),

involved questions similar to the one posed here, the facts of those

two cases are entirely distinguishable. In Soto Segarra the union,

despite repeated requests (to which the union did not respond),

refused to file a grievance over the discharge of plaintiff, who was

a leading critic of the union, and ‘‘[n]o evidence even remotely

indicated that the union’s failure to process the grievance was

based on investigation and evaluation of the merits,’’ 581 F.2d at

295. In Willetts, the court merely stated, in dictum, that the dis-

trict court should not have granted summary judgment against

plaintiff where there was a factual conflict between his affidavit

and the affidavits of union officers and where, if plaintiff’s version

of the facts were true, nothing was done with plaintiff’s grievance

and plaintiff was falsely told for five months that the grievance

was pending. As we show below, the evidence adduced at the trial

in the instant case shows that, in contrast to Soto Segarra and

Willets, petitioner’s grievance was processed through the steps

leading to arbitration and was eventually withdrawn ‘‘based on an

investigation and evaluation of the merits.’’

7

decision below is not only without general significance, but

also entirely correct.

Petitioner and a fellow employee, Clarence Landrum,

were discharged for fighting with each other at work.* This

‘was the second time petitioner had been discharged by

O’Neal Steel; on the first occasion, in 1971, the union filed

a grievance on petitioner’s behalf which was handled by

staff representative William Caldwell (C.A. App, 102-103).

In that grievance the arbitrator, while discrediting peti-

tioner’s testimony that he had done no wrong, ruled that the

punishment of discharge was too severe in light of peti-

tioner’s work record as of that time (Jd. at 216-24), Accord-

ingly, the arbitrator gave petitioner a second chance by

ordering him reinstated (without back pay).

Following his second discharge the union again filed a

grievance for petitioner.’ As part of its investigation of

that grievance the union obtained from the company copies

of sworn statements signed by witnesses to the fight; those

statements indicated that petitioner struck the first blow

(Id, at 236-39), (and not, as petitioner alleges, that pe-

titioner ‘‘was merely defending himself’’ (Pet. at 16)).

The union also interviewed each of the persons who had

signed a statement; the witnesses all adhered to their state-

* The district court stated that the fight occurred over a ‘‘calen-

dar in the plaintiff’s possession’’ which ‘‘Landrum attempted to

take ... from him’’ (Pet. App. B-3) and that petitioner ‘‘was

acting in defense of his property.’’ (Jd. at B-7). What the district

court neglected to mention, however, was that according to peti-

tioner’s own testimony, petitioner obtained ‘‘possession’’ of the

calendar by taking it from a bench in the bathhouse where Landrum

had placed it while dressing, and that prior to taking the calendar

and walking off with it petitioner had never previously possessed

it (C.A. App. 61-62, 84-85).

5Tandrum told the union not to file a grievance for him since

he believed that he and petitioner were both cupable and thus

could not win grievances (C.A. App. 154-55).

8

ments and the eyewitness who was closest to the fight in-

formed the union (as he later testified at trial (C.A. App.

138-39) ), that petitioner started the fight and did so before

Landrum brandished a knife (Jd. at 44-45, 158, 162, 172,

179). The grievance committee spoke, as well, to the two

individuals whom petitioner claimed would support his

version of the facts; those individuals told the union, how-

ever, id. at 49 (as petitioner ultimately conceded at trial,

id, at 113), that they had not witnessed the fight. Finally,

the union grievance committee, including Caldwell, met

with petitioner for an hour to discuss the grievance and to

reenact the fight (Jd. at 115, 180).7 In the course of the

meeting the union advised petitioner that his grievance

looked doubtful because of the statements of the witnesses

to the fight (id. at 104-05); petitioner responded that the

witnesses were liars and that the closest eyewitness would

change his testimony (Jd. at 179).

Petitioner’s grievance was heard initially in the second

® At trial, the district court cross-examined this eyewitness at

some length, id. at 141-47, but was unable to shake his testimony.

Notwithstanding this testimony (by a disinterested witness) and

the testimony that petitioner had given a similar version of the

fight to the union, see n.7, infra, the district court found that

Landrum brandished the knife first (Pet. App. B-6).

7 Caldwell, Grievance Committee Chairman Ford, and Local

President Walters each testified that during the course of the com-

mittee meeting with petitioner, petitioner admitted that he had

struck the first blow, and had done so before Landrum drew his

knife (C.A. App. at 149, 168-69, 180-81). Bobby McCarle, the plant

superintendent, testified that petitioner told him the same thing

immediately before petitioner was discharged (Id, at 330). And

all of the above-named witnesses, plus Personnel Director Hallmon

(Id. at 231), testified that at the third step meeting petitioner

admitted to striking the first blow. At trial, however, petitioner

denied having made such a statement to the union, to McCarle, or

at the third step meeting (Id. at 210). The district court did not

resolve this conflict in the testimony.

9

step of the grievance procedure where it was denied by the

company (Jd. at 245). The grievance was then appealed

to the third step; petitioner met with the grievance com-

mittee before the third step meeting and attended the meet-

ing along with his union representatives (Jd. at 18). At the

third step the union’s argument that petitioner was not at

fault was rejected by the company (Jd. at 246). To meet

the deadline for appealing the grievance to arbitration the

union filed a protective appeal and began the process of

selecting an arbitrator ® while the union considered wheth-

er the grievance merited arbitration (Jd. at 26). It was the

union’s practice carefully to screen grievances for arbitra-

tion; only a handful of cases were presented in arbitration

each year (id. at 209-10), and between 1969 and 1976 only 10

discharge cases were heard in arbitration (Jd. at 297).

Before deciding whether to present the grievance in arbi-

tration, the union grievance committee met with Caldwell

(Id. at 27).%° Caldwell pulled prior discharge cases out of

8 Under the collective bargaining agreement, to expedite dis-

charge grievances the first step of the grievance process could be

bypassed.

® The district court’s statement (Pet. App. B-4) that ‘‘the Union

and [petitioner] were unable to agree upon a list of arbitrators’’

and that they obtained a list ‘‘from which [petitioner] and the

Union would alternate striking names’’ is, of course, incorrect, as

the appellate court recognized (Id. at A-3). It was the union and

the company who could not agree on the list and who were to do

the striking.

0 Petitioner asserts in his petition that he did not receive notice

of this meeting (Pet. at 13). At trial, Caldwell and Grievance

Chairman Ford testified that they each personally notified peti-

tioner of the time and place of the meeting and requested him to

attend (C.A. App. 27, 171). Petitioner denied having received

such notification. (Jd. at 73). The district court did not resolve

this conflict, and the court of appeals thought it unnecessary to

resolve the conflict since, in any event, ‘‘lack of notice is not

determinative on the issue of good faith’’ (Pet. App. at A-8).

10

the union’s file looking for support for the union’s position;

none of the cases he found and reviewed with the committee

were supportive (Jd. at 29, 52)."* The union also consulted

with a union attorney and with a director of the Interna-

tional union (/d. at 152-53). Based on all the information

before it—including the adverse witnesses and statements,

the absence of any witnesses willing to state that Landrum

was the aggressor, and the prior arbitration decision find-

ing petitioner guilty of misconduct but offering him a

second chance—the three-member committee unanimously

decided that the grievance did not merit presentation in

arbitration (/d. at 153).'* Accordingly, the grievance was

withdrawn."

1 The petition alleges that ‘‘although [Caldwell] knew of cases

where the discharge had been set aside under similar circumstances,

these were not presented to the committee’’ (Pet. at 6). No citation

is offered for this statement. The ommission is understandable:

there is not one iota of evidence in the record which supports this

assertion.

12The union’s assessment of this grievance was confirmed at

trial by an arbitrator called as an expert by the company who

testified (contrary to the assertion in the petition (at 16)) that

‘‘the probable result in the arbitration of the case is that the dis-

charge would be upheld’’ (C.A. App. 311).

'8 Petitioner attempts to make a great deal of the union’s alleged

misrepresentation in supposedly telling petitioner that his griev-

ance had been lost in arbitration rather than withdrawn. At trial,

Grievance Chairman Ford testified that immediately after the com-

mittee decided to withdraw the grievance (at the meeting which

petitioner did not attend), he (Ford) called petitioner and so

informed him. Ford further testified that petitioner then requested

to talk with Caldwell (C.A. App. 174-75). Caldwell, who was

present during Ford’s phone call, confirmed Ford’s testimony and

Caldwell testified that he also told petitioner the grievance was

being withdrawn during the same phone call (Id. at 30). And

grievance committee member Jones testified that after the griev-

ance was withdrawn petitioner called him to ask the reasons for

the union’s deeision (Jd. at 50). In his testimony, however, peti-

11

A word is required concerning the allegation that the

union here was guilty of racial discrimination in withdraw-

ing petitioner’s grievance. Petitioner did not make any

claim of racial discrimination in his complaint, in the pre-

trial order, in his trial testimony, or in his post-trial sub-

missions. In fact, there was no mention of race at trial ™*

except when the district court inquired as to the racial

composition of the grievance committee (and learned that

one-third of the members attending the final meeting were

black) (Id. at 200). The racial discrimination issue was in-

jected into this case, sua sponte, by the district court,

months after trial had concluded. As the court of appeals

found, the district court’s ‘‘conclusory statement’’ attrib-

uting discriminatory motive to the union was ‘‘ unsupported

by any evidence’’ (Pet. App. A-5).

That the court of appeals concluded that this record

would not support a finding of a breach of duty is hardly

surprising. The record here contains no evidence of any

discriminatory, arbitrary, or bad faith conduct on the part

of the union.’® Rather, what the evidence establishes in that

the union diligently investigated the facts surrounding

tioner, while recalling having received a call from Ford at about

the time the grievance was withdrawn, maintained that he was

informed in the call that the union ‘‘had taken my case to arbitra-

tion, and I didn’t show up . . . and the arbitration turned my case

down’”’ (Id. at 73, 113). The district court accepted petitioner’s

recollection over the testimony of Caldwell, Ford and Jones and

thus found that the union had misrepresented the disposition of

the grievance (Pet. App. B-6). The court of appeals expressed

skepticism about this finding but did not decide whether it was

clearly erroneous ‘‘since the misrepresentation, if it took place,

would have occurred after the alleged bad faith action [by the

union]’’ (Pet. App. A-5) (emphasis in original).

4 Thus there is not even evidence in the record to support the

district court’s assertion that the union was mostly white (Pet.

App. B-4)—an assertion which is, in reality, contrary to fact.

© Indeed, in his petition for a writ of certiorari, petitioner him-

12

titioner’s grievance and reached a judgment as to the

pe

self concedes (at 20) that ‘‘there is not doubt that [the grievance

committee] attempted to make a reasonable decision based upon the

material before them.’’ Petitioner rests his entire claim, then, on

Caldwell’s alleged hostility. A brief comment on the state of the

record with respect to Caldwell’s ‘‘hostility’’ is thus in order.

Petitioner did not mention in his testimony at trial that Caldwell

manifested any hostility towards him either in successfully han-

dling the first discharge grievance or in processing the second dis-

charge grievance. In fact, petitioner mentioned Caldwell only a few

times in his testimony, once to describe a meeting with Caldwell,

once to describe a phone call, and once to state Caldwell handled

petitioner’s prior discharge grievance (C.A. App. 70-74, 103, 106).

Nor did Caldwell articulate any hostility towards petitioner. The

issue of Caldwell’s alleged hostility was injected into the case by

the district court based solely upon what it perceived as Caldwell’s

hostile demeanor at trial; the court assumed that the hostility pre-

dated the filing of this action in which petitioner in effect chal-

lenged the manner in which Caldwell had performed his job.

The district court attempted to buttress its finding of hostility

by attributing to Caldwell a remark which the court characterized

as amounting to a ‘‘ ‘don’t call us, we’ll call you’ ’’ statement (Pet.

App. B-6). In fact, as the court of appeals recognized (Id. at A-5),

neither petitioner nor any other witness attributed any such remark

to Caldwell. Petitioner testified that Walters (who did not attend

the meeting at which the decision was made to withdraw petitioner’s

grievance (C.A. App. 29)), told petitioner to stop calling (Jd. at

72); Walters testified that what he told petitioner was to stop

calling late at night (Jd. at 178). (In rebuttal petitioner denied

ealling late at night and stated that he usually called late in the

afternoon and was told by Walters’ wife when Walters would be

home; in surrebuttal Walters testified that he was separated from

his wife at the time and living alone (Jd. at 210-12).)

In any event, as the court of appeals observed, ‘‘the trial judge

did not find nor could he find on the record that Caldwell’s hostility

motivated the union to withdraw the grievance from arbitration.

.. . [T]he demeanor of a witness at trial may be considered in

evaluating the credibility of that witness, but it cannot by itself

uphold a finding of union hostility’’ (Pet. App. A-5-6).

13

grievance’s lack of merit—a judgment with which petitioner

and the district court ultimately disagree. But as the court

of appeals concluded, it simply cannot be said here ‘‘that

the union’s assessment that there was little chance of suc-

cess was unreasonable’’ (Pet. App. A-17). Thus, the court’s

conclusion that on these unique facts no breach of the duty

was established is unassailable.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

MicHakEu H, GoTrresmMan

Rosert M. WEINBERG

Davip M. SruBpERMAN

Bredhoff, Gottesman, Cohen,

Chanin, Weinberg & Petramalo

1000 Connecticut Avenue, N.W.

Washington, D.C. 20036

GEORGE LONGSHORE

Cooper, Mitch & Crawford

409 N. 21st Street

Birmingham, Alahama 35203

Attorneys for Respondent Tnited

Steelworkers of America