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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 833

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2471%3A3. Public record. Not legal advice.