Opposition — Williams v. Pacific Maritime Ass'n

No. 80 499 | Noy 25

In the Supreme Court... “oDae

OF THE edit aiy

United States

Octoser TreRM, 1980

Grorce R. WituiaMs, et al.,

Petitioners,

VS.

Paciric Maritime AssociaTION, a non-profit corporation,

INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S

Union, an unincorporated association, and

I.L.W.U. Locat No. 10,

Respondents.

RESPONSE TO PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NorMAN LEONARD

COUNSEL OF RECORD

Law OFFICES OF

NorMAN LEONARD

1182 Market Street

Room 320

San Francisco, CA 94102

(415) 626-3077

Attorneys for Respondents

International

Longshoremen’s and

Warehousemen’s Union

and Local 10 of the

International

Longshoremen’s and

Warehousemen’s Union

Liuick McHose & CHARLES

Gary J. Torre

Dennis T. DANIELS

Two Embarcadero Center

Suite 2600

San Francisco, CA 94111

(415) 421-4600

Attorneys for Respondent

Pacific Maritime

Association

TABLE OF CONTENTS

A EE Py OIE SE NIA ON MD SO LL

II. Petitioners’ Questions for Review do not warrant grant

OF CINE 65 sae Rad cP AO ikea st oeeeibhadaagueese da

A. The factual situation of this case does not warrant

reexamination by this Court ...........0e0ee008

B. This case presents no issue of the “preclusive effect”

of National Labor Relations Board decisions upon

ND Och tanh hacedhs bos ne be ste he

C. This case presents no issue of the waiver of an em-

ployee’s right to fair representation or the right to be

discharged only for good cause ...........00++5

D. This Court should not review the merits of a breach

of collective bargaining agreement where there is a

final and binding decision in the contractual grie-

| I ere ee ee en

E. This Court need not grant certiorari to determine

that the court below diligently performed its judicial

PN ic bse Ees Cha tn es hase BWa te ceeneneres

III. The court of appeals did not disregard the “teach-

ings” of this Court nor does its decision conflict with the

decisions of any other court of appeals .............

CEE Wiad aces kcavedbonecesteakeeeshekescak suey

TABLE OF AUTHORITIES CITED

Cases

Page

Amalgamated Association of Street, Electric Railway &

Motor Coach Employees v. Lockridge, 403 U.S. 274

TO ia Ie ks line lhe 19, 20

Archie v. Chicago Truck Drivers’. Union, 585 E2d 210 (7th

EC PaaS ad dictatiw hens aides an Vewent~ tus 12

Baker v. Schofield, 243 U.S. 114 (1917) ..........00005 6

Berenyi v. Director, INS, 385 U.S. 630 (1967) .......... 6, 7

Beriault v. Local 40, Super Cargoes & Checkers of the

International Longshoremen’s & Warehousemen’s

Union, 501 E2d 258 (9th Cir. 1974) ................ 20

Bisso v. Inland Waterway Corp. 349 U.S. 85 (1955) ..... 12

Boone v. Armstrong Cork Co., 384 F2d 285 (5th Cir. 1967) 14

Brady v. Trans World Airlines, Inc. 401 E2d 87 (3rd Cir.

eee Us Lic ame datos scab ne beens us 0eaes 20, 21

Day v. United Automobile, Aerospace & Agricultural Im-

plement Workers, 466 E2d 83 (6th Cir. 1972) ........ 13

General Drivers Local 89 v. Riss & Co., 372 U.S. 517 (1963) 14

Graver Tank and Manufacturing Co. v. Linde Air Products

Bg RRR aT RL SE EN 6, 7

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976) . 20

Humphrey v. Moore, 375 U.S. 335 (1964) ............. 15

International Brotherhood of Electrical Workers v. Foust,

ee ee EE as abba herainee 66 6ene bade n ewes 6, 20

J.I. Case v. NLRB, 321 U.S. 382 (1944) ........ccccees ll

Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S.

EE sins 4 ie SM oreo wks Ka hae en a haiae nee © s 6

Lewis v. Magna American Corp., 472 E2d 560, (6th Cir.

Ree it as 5 Whee us ohadeeah bade es 14

Pacific Maritime Association (Johnson Lee), 155 N.L.R.B.

ARES ee ee ey eee 8

Paramount Transport Systems v. Chauffeurs, Local 150,

456 E2d 1064 (Oth Cir. 1971) ...ccccvccsccccccccces 9

Paramount Transport Systems v. Chauffeurs, Local 150,

529 E2d 1284 (9th Cir.), cert. denied 426 U.S. 908 (1976) 9

Price v. International Brotherhood of Teamsters, 457 E2d

ae yo Re ae ee Peer een eer ee 15

Retana v. Apartment, Motel, Hotel & Elevator Operators

Union Local No. 14, 453 E2d 1018 (9th Cir. 1972) 19, 20, 21

Rice v. Sioux City Memorial Park Cemetery, Inc., 349 U.S.

——t

70 (1955) ...... ENek Uae € hose 440 ha ERS CREE OEE 6

Robesky v. Qantas Empire Airways, Ltd. 573 E2d 1082 (9th

CE COM S fu de BEL bss a newb to hea vues cen weeks 20

Rose v. Mitchell, 443 U.S. 545 (1979) ...........0 ee eee 7

Rosenberg v. United States, 346 U.S. 273 (1953) ........ 3

Steele v. Louisville & Nashville Railway, 323 U.S. 192(1944) 19

Stewart v. Travelers Corp., 503 E2d 108 (9th Cir. 1974)... 9

Stuart v. Hayden 169 U.S. 1(1898) ..........cceeceees 6

United States v. Ceccolini, 435 U.S. 268 (1978) ......... 7

United States v. Johnson, 268 U.S. 220 (1925) ......... 6

United States v. Utah Construction & Mining Co., 384 U.S.

OC es ia ed EL eae Ce ce cake eaaeeac see on )

Vaca v. Sipes, 386 U.S. 171 (1967) ............. 2, 14, 19, 20

Williams v. International Association of Machinists, 617

Re ee GE SOE bo bce ne ce Ke cb ebvabeseeteves 6

Williams v. International Association of Machinists, — U.S.

— (No. 79-2007) 49 U.S.L.W, 3210 (October 6,1980) . 6

Williams v. Pacific Maritime Association, 384 E2d 935 (9th

Cir.) cert. denied 390 U.S. 987 (1967) ...........005. 2,19

Williams v. Pacific Maritime Association, 421 E2d 1287 (9th

SE Lala k vrs souk bee vues Gwe ckine gia 2

Williams v. Pacific Maritime Association, 617 E2d 1321 (9th

Ce NE Kaw 40s guest eheeeeutaen Vasey h eevee passim

v*

iv

Rules

United States Supreme Court Rules, Rule 19(1) ........

Statutes

Consumer Credit Protection Act of 1968, 15 U.S.C. sections

IE 60 ks beh od 0d oan 8 hb 0.9'0-0 co annie wenn

i ale oe Rie wigs s Mh bee Hovele

oy pe a eth gis ak bidlb ein dibed

?-*

No. 80-499

In the Supreme Court

OF THE

United States

OcToBER TERM, 1980

GrorcE R. WILLIAMS. et al.,

Petitioners,

vs.

PaciFic MARITIME ASSOCIATION, a non-profit corporation,

INTERNATIONAL LONGSHOREMEN’S AND WAREHOUSEMEN’S

UNION, an unincorporated association, and

I.L.W.U. Loca No. 10,

Respondents.

RESPONSE TO PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

I

INTRODUCTION

The 51 petitioners were part of a group of some 530 Pacific

Coast longshoremen who applied in 1963 for promotion from a

Class “B” status with limited employment rights to “A’ status carry-

ing full employment status. Over 80 percent met the promotion

standards.’ Petitioners did not. Two courts below have held that

'The relevant standards included (a) availability for employment,

(b) prompt payment of each man’s pro-rata share of the expenses of

the dispatch hall, (c) not cheating on fellow workers in the procure-

ment of employment and (d) freedom from employer complaints of

intoxication.

2

petitioners have not been denied any rights under their collective

bargaining contract and have not been denied fair representation

by their union. Petitioners ask this Court to review and overturn

those decisions of the courts below.

This case has had a long and tortuous passage through the

lower federal courts. Petitioners filed their first complaint over

sixteen years ago on April 18, 1964. Pet.App. 61.? Successive

pleading failures finally led to the fourth amended complaint

which the district court also dismissed. Petitioners then filed

their first appeal to the Ninth Circuit Court of Appeals. Be-

tween completion of briefing and oral argument, this Court

handed down Vaca v. Sipes, 386 U.S. 171 (1967), the landmark

decision on the duty of fair representation. The court of ap-

peals thereupon returned petitioners’ case to the district court

for further proceedings. Williams v. Pacific Maritime Association,

384 E2d 935 (9th Cir.) cert. denied 390 U.S. 987 (1967). The

district court excised portions of the fourth amended com-

plaint and dismissed the claims against the individual defend-

ants. Petitioners again resorted to the court of appeals which

affirmed the lower court. Williams v. Pacific Maritime Association,

421 E2d. 1287 (9th Cir. 1970).

With the form of the complaint finally seti!ed, the matter

came to trial on January 10, 1974. The taking of live testimony

continued for six months. The final trial record consisted of

7448 pages of testimony, approximately 1000 exhibits and a

293 page stipulation as to testimony.’ The trial court ruled

against petitioners.

*Designation of References. We shall refer to the Petition for Writ

of Certiorari as Pet., to petitioners appendix as Pet.App. and to

our appendix as Resp.App. each to be followed with appropriate

page numbers.

®The stipulation contained the following:

The [District] Court now has before it a record that will permit

it to make lawful and proper credibility findings, to be given

their usual weight on appeal, as to items of testimony submitted™*~

by this stipulation and as to any witness who is deemed to give

3

For the third time petitioners took their case to the court of

appeals. After extensive argument, that court affirmed the

judgment below. Williams v. Pacific Maritime Association, 617

E2d 1321 (9th Cir. 1980). In their petition to this Court, pe-

titioners take what should be the last step to bring this pro-

tracted proceeding to a close.*

Petitioners urge this Court to accept their version of the facts.

They have quoted and referred to bits of the record to con-

struct a version of the facts which has been rejected by the two

courts below. They have totally ignored the balance of the vast

record which paints an entirely different picture. We accept the

factual statement of the court of appeals and shall not reargue

the facts here.

Petitioners submitted an Appendix which contains scraps of

evidence to support their factual contentions. We have submit-

ted an Appendix which contains substantially more of the rec-

ord below but which is still only a fraction of the mammoth

record from which the district court drew its findings. Our

Appendix contains sufficient excerpts from the record to sup-

port the district court’s findings on all issues raised by

petitioners.

Our effort shall be devoted to showing that petitioners offer

no legal issues justifying a grant of a writ of certiorari. We shall

show that petitioners attack a decision bearing little re-

semblance to the decision of the court below.

Petitioners offer six Questions Presented for Review. We dis-

cuss each in detail below. None justifies review by this Court.

None raises a question of conflict among the circuit courts.

None poses an important federal legal issue of first impression

= saci icine

testimony hereunder, and a record upon which the Court can

resolve the relevant and material conflicts, if it finds any, within

the testimony here presented or between items of the testi-

mony here presented and the balance of the record herein.

Resp.App. 112-13

‘Proposed amici seek to raise an issue which petitioners them-

selves do not raise here and did not raise in the court of appeals. Cf.

Rosenberg v. United States, 346 U.S. 273, 291-92 (1953). (“We dis-

countenance this practice.” Jd. at 292.)

°%

4

which this Court should resolve. None suggests that the Ninth

Circuit failed to follow any decision of this Court. Although the

Questions Presented for Review show petitioners’ displeasure

with the outcome of their case, petitioners cannot seriously

argue that the court below departed from the accepted and

usual course of judicial proceedings.

Petitioners principal legal arguments are that the Ninth Cir-

cuit Court of Appeals departed from the “teachings’ of this

Court by refusing to view arbitrary conduct as an indepen-

dent ground for finding a breach of the duty of fair represen-

tation and created conflicts among the courts of appeals as to

whether each recognizes arbitrary conduct as a distinct basis

for finding a breach of the duty of fair representation. In Sec-

tion III below we show that these arguments are without merit.

II.

PETITIONERS’ QUESTIONS FOR REVIEW

DO NOT WARRANT GRANT OF CERTIORARI

Petitioners pose six questions for review by this Court. As

stated above, not one justifies review by the Court. An analysis

of the decision below refutes petitioners’ position. Below we

analyze each of petitioners’ Questions Presented for Review.

A. The factual situation of this case does not warrant reex-

amination by this Court.

Petitioners’ first two questions for review ask this Court to re-

examine whether the union's duty of fair representation was

breached in a particular and individualistic factual configura-

tion.’ Such reexamination is not within the limited and specific

Petitioners’ first and second Questions Presented for Review are:

1. Whether or not a union breaches its statutory duty to provide

fair representation when it agrees to the discharge of a large

number of members of the collective bargaining unit for

work-related infractions which were not the subject of a dis-

charge penalty when the infractions occurred during the

previous four years of employment?

2. Whether or not a union breaches its duty to provide fair rep-

resentation when it agrees to the discharge of a large

5

function of certiorari to the nation’s highest tribunal. The rules

of this Court specifically state that review on certiorari “is not a

matter of right, but of sound judicial discretion, and will be

granted only where there are special a~d important reasons

therefor.” SUPCT. R. 19(1). Petitioners do not demonstrate any

special or important reasons in this case.

As evidenced by the long history of opinions below, pe-

titioners have already had their days in court. The issues in-

volved in this case have now been litigated three times in the

appeals court. The particular judgment at issue was rendered

after a lengthy trial in the district court. It would not be appro-

priate for this Court once again to sift through the specific fac-

tual circumstances of this case.

The issues raised by petitioners in the first two questions

were adequately and thoroughly examined by the courts below.

One by one the court of appeals discussed the facts underlying

the allegations of petitioners as to the duty of fair representa-

tion claims, and each time the court concluded no breach had

occurred. 617 E2d at 1330-34; Pet.App. 16-24. The court of

appeals opinion correctly applied the duty of fair representa-

tion doctrine as articulated by this Court, by its own prior deci-

sions and by the other appeals courts for other circuits. Its de-

cision on the facts reconfirmed the findings and conclusions of

the district court. After their unsuccessful appeal to the Ninth

Circuit, petitioners requested reconsideration. However,

neither the panel that heard the case nor any single judge of

the Ninth Circuit even requested a vote on the suggestion for

rehearing en banc.

Thus petitioners have already made several unsuccessful at-

tempts to convince the lower courts that their version of the

facts constituted a breach of the union's duty of fair representa-

number of members of the collective bargaining unit for

conduct which was not in violation of any provision of the

collective bargaining agreement or applicable working rules

at any time during the previous four years of employment?

6

tion. They now request this Court to review the record once

again. Mr. Justice Holmes, speaking for the Court, ruled that

such repeated inquiry into particular facts is an inappropriate

task for the Supreme Court. “We do not grant certiorari to re-

view evidence and discuss specific facts.” United States v.

Johnson, 268 U.S. 220, 227 (1925).

As this Court recently noted in International Union of Electn-

cal Workers v. Foust, 442 U.S. 42, 46 n. 7 (1979), the review of an

evidentiary question in a breach of the duty of fair representa-

tion case is a factual matter for which this Court is “unwilling to

substitute [its] judgment for thac of the jury, District Court,

and Court of Appeals. . . .”® See also Stuart v. Hayden 169 US. 1,

14 (1898); Baker v. Schofield, 243 U.S. 114, 118 (1917); Graver

Tank and Manufacturing Co. ». Linde Air Products Co., 336 U.S.

271, 275 (1949); Berenyi v. Director, INS, 385 U.S. 630, 635-36

(1967).

The petitioners’ first two Questions Presented for Review

turn on the particular facts of this case alone and are of interest

only to the instant parties. This Court has affirmed that when

issues presented are insignificant to the general welfare a grant

of a writ of certiorari is inappropriate. Layne & P wler Corp. v.

Western Well Works, Inc., 261 U.S. 387, 393 (1923); Rice v. Sioux

City Memorial Park Cemetery, Inc., 349 U.S. 70, 79 (1955).

In effect, petitioners request this Court to delve into yet

another review of the lengthy record of this case in the hope

that it may weigh the evidence differently than the two prior

courts and find what those courts have been completely unable

to find: Proof of the union's breach of its duty of fair represen-

SMore recently in Williams v. International Ass’n. of Machinists, —

U.S. —— (No. 79-2007) 49 U.S.L.W,, 3210, 3234 (October 6, 1980)

this Court refused to reexamine a court of appeals’ per curiam

affirmance without opinion of a district court's findings and conclu-

sions in a case involving a claim of the breach of the duty of fair

representation. Williams v. International Ass’n. of Machinists, 617 F2d

441 (5th Cir. 1980).

7

tation to petitioners. That is not the function of certiorari and

the writ should be denied.’

B. This case presents no issue of the “preclusive effect” of

National Labor Relations Board decisions upon federal

courts.

In their third Question Presented for Review, petitioners ask

this Court to decide a matter that is not an issue in this case.

Petitioners assert that the courts below gave “preclusive effect”

to a decision of the National Labor Relations Board. The asser-

tion is without merit.®

?While petitioners argue that this Court “may” review findings of

fact under the “two court rule” if there is a “very obvious and excep-

tional” showing of error, Pet. 35, they have failed to make such a

showing here. To the contrary, as this response demonstrates, no

such showing is possible. In that situation, the admonition in Graver

Tank, supra, is particularly apposite: “A court of law such as this

Court is, rather than a ccurt for the correction of errors in fact find-

ing, cannot undertake vo review concurrent findings of fact by two

courts below ...” 366 U.S. at 275. Berenyi, supra, stated the policy

underlying the two court rule:

The policy underlying the ‘two court’ rule is obvious. This Court

possesses no empirical expertise to set aside the careful and

reasonable conclusions of lower courts on purely factual issues.

When, as here, resolution of the disputed factual issues turns

largely on an assessment of the relative credibility of witnesses

whose testimony or demeanor was observed only by the trial

court, the rule has particular force. 385 U.S. at 636.

The Berenyi court noted an exception in the case of constitutional

issues, 385 U.S. at 636, none of which are present here. In United

States v. Ceccolini, 435 U.S. 268 (1978) this Court reiterated its “tra-

ditional deference to the ‘two court’” rule and left undisturbed the

court of appeals affirmance of a district court finding of fact except

where a constitutional question was involved. Id. at 273-279. Rose v.

Mitchell, 443 U.S. 545 (1979) was not a “two court rule” case. In any

event, it involved the constitutional claim of racial discrimination in

jury selection.

8Petitioners’ third Question Presented for Review is: “Whether or

not a decision of the National Labor Relations Board involving other

persons similarly situated, but never subjected to judicial review, is

entit!ed to preclusive effect upon a later case in the courts for unfair

representation and breach of the collective bargaining agreement?”

8

In its findings numbered 125 and 126, the district court

found as a fact that the National Labor Relations Board de-

cided, inter alia, that the use of the late payment of pro-rata as

an explicit promotion standard for Class “B” longshoremen did

not violate the National Labor Relations Act. Pet.App. 67-68.

The district court, however, made no conclusions of law based

on the Board’s decision. Nothing in the district court’s conclu-

sions of law can be read to support the idea that the district

court considered itself bound by the Board’s decision and pe-

titioners do not suggest as much. The district court’s decision

on whether the union breached its duty of fair representation

rested upon its view of the evidence presented to it and not

upon the decision of the National Labor Relations Board.

In this posture, the Ninth Circuit reviewed the district court’s

decision. That court’s entire treatment of the Board case oc-

cupies only a few lines of the opinion. 617 E2d at 1333;

Pet.App. 23. Beyond cavil, the Ninth Circuit did not give “pre-

clusive effect” to the NLRB decision. The court did no more

than independently agree with the Board’s conclusion.

Despite the foregoing, petitioners erect a strawman argu-

ment based upon the premise the “federal courts are not and

should not be precluded from examining an issue resolved by

the Board years earlier when different legal principles and

standards applied.” Pet. $1.° The premise has no application to

*The implication of petitioners’ position is disturbing in that it

would follow that a person could engage in activity lawful under the

then prevailing standards but later could be assessed civil damages

based upon subsequently changed law.

~s

9

the facts of this case. A reading of the circuit court’s opinion

and the findings and conclusions of the district court reveal

that neither court considered that the Board decision pre-

cluded it from examining the merits of the case. Petitioners’

real complaint is that all three tribunals independently reached

the same conclusion adverse to petitioners’ position.

If any justification exists for this Court to review the res

judicata or collateral estoppel effect of Board decisions upon

subsequent court cases (and we see none), this case is not an

appropriate vehicle for such review.'®

C. This case presents no issue of the waiver of an em-

ployee’s right to fair representation or the right to be

discharged only for good cause.

In their fourth Question Presented tor Review, petitioners

ask for review based on their assertion that the court below con-

cluded that the language in the application for Class “B” regis-

tration which each petitioner signed constituted a waiver of fair

representation and that the collective bargaining parties con-

sidered petitioners’ acceptance of employment as a waiver of

1°If the issue were properly here it would have to be noted that

petitioners themselves filed NLRB charges raising the same issues

(Exhibit AH) which were ultimately dismissed. Under this circum-

stance, the courts below, had they in fact regarded the Board's deci-

sion as “preclusive,” would have been justified in finding collateral

estoppel. United States v. Utah Constr. & Mining Co., 384 U.S. 394

(1966); Paramount Transp. Sys. v. Chauffeurs, Local 150, 529 E2d

1284 (9th Cir.), cert. denied 426 U.S. 908 (1976); Paramount Trans.

Sys. v. Chauffeurs, Local 150, 436 E2d 1064 (9th Cir. 1971). Pe-

titioners’ reliance on Stewart v. Travelers Corp., 503 E2d 108 (9th Cir.

1974) is wide of the mark. Stewart presented the question of

whether the Consumer Credit Protection Act of 1968, 15 U.S.C.

§§1601, et seg., which prohibits discharge of an employee for a gar-

nishment for one indebtedness, created a private cause of action.

Nothing in Stewart spoke to a collectively-bargained requirement

that workers share the cost of operating the facility through which

they are dispatched to employment.

10

.

their right to be discharged only for good cause.'' These con-

clusions are ones the court below never made. While the court

of appeals did quote the language of the application’* and the

rules'® it referred to this and other evidence to support the

district court’s findings and conclusions that respondents ade-

quately warned petitioners that misconduct could lead to de-

registration.'* In its discussion of this evidence the court below

a

‘Petitioners’ fourth Question Presented for Review is “Whether

or not members of the collective bargaining unit may be compelled

to agree to the waiver of their rights to fair representation and to be

discharged only for good cause as a condition of employment?”

Class “B” registration, if granted, shall be subject to agreements

between the PMA and ILWU, or their successors, and to rules with

respect to registration and deregistration established by said parties; |

understand that registered longshoremen may be deregistered and

that registration may be revoked in accordance with such agreements and

such rules now in effect or hereafter to be agreed upon or adopied by the

Association and the Union of their successors or hy the Joint Port

Labor Relations Committee. (Emphasis added by court). 617 E2d at

1332; Pet.App. 19.

'SDeregistration of Limited Registration (Class “B”) Longshore-

men. (a) A Class “B” longshoreman may be deregistered for cause by the

Joint Labor Relations Committee (in accordance with such rules or uniform

procedures as may be established or followed by such Committee) if the

Committee finds:

(i-x) any of ten types of misconduct or inadequacy for the job of

longshoreman;

(xi) or for any other cause, provided that neither membership

or nonmembership in the union nor activity or nonactivity for or

against the union shall be a factor in considering applications

for registration or i deregistration.

(Emphasis added by court). 617 E2d at 1331-32; Pet.App. 19-20.

“The District Court’s finding that plaintiffs were adequately

warned is amply supported by the record. E.g., Resp.App. 115-18

(“I remember hearing such warnings from a number of the union

officials during the B Men's meetings ... I acknowledge that I and

all other B Men had to keep an absolutely clean record .. . [we were

told on various occasions that the union expected strict observance

of all rules by us ...”); id. at 130, 135-36 (“I was from time to time

admonished ‘keep your nose clean’ by the union”.)

1]

stated: “We are convinced, however, that the union supplied the

employees with repeated and adequate warning that mis-

conduct of which they were guilty could be the basis for their

failure to advance to Class ‘A status.” 617 E2d at 1331:

Pet.App. 19.

Neither court below rested its decision upon the suggestion

that plaintiffs had waived any right to fair representation or

any right to be discharged only for good cause.'®

Petitioners’ reliance upon J.J. Case v. NURB, 321 U.S. 332

(1944) is misplaced. There this Court rejected an employer’s at-

tempt to use individual employment contracts as a bar to enter-

ing into collective bargaining agreements with a union. Here

the court below did not hold that the 1958 Rules and the 1959

applications were individual contracts. To the contrary, the

court of appeals specifically held that they were part of the col-

lective bargaining agreement. The court stated:

The 1958 Rules as well as the 1963 standards for deregis-

tration were validly adopted by the Port Committee in ac-

cordance with the second clause in ... [subsection 17.851

of the collective bargaining agreement]. Under that clause

the Port Committee was entitled to promulgate future

registration rules and procedures subject to the action of

the Coast Committee setting them aside in exercise of its

ultimate power over this subject. 617 E2d at 1334;

Pet.App. 25.

'5Petitioners position is curious. They argue that they were never

warned that misconduct could result in deregistration and that the

failure to warn them was a breach of the duty of fair representation.

When confronted with the evidence cited by the court to show ample

warning, petitioners argue that the warnings they acknowledge

receiving should be ignored because such warnings themselves were

“waivers” of their right to fair representation and to be discharged

only for good cause. The record demonstrates that petitioners ig-

nored the warnings because they thought they could get away with

it. Resp.App. 120, 135, 137. It takes little imagination, to use pe-

titioners’ language, Pet. 29, to envisage the argument petitioners

would now be making if they had not been given these advance

warnings.

-*

af

12

The other cases cited by petitioners are inapposite. Respon-

dents do not quarrel with the statement in Bisso v. Inland

Waterway Corp., 349 U.S. 85, 90 (1955) that contracts contrary

to public policy are invalid. Respondents point out, however,

that the instant case does not involve enforcing a contract with

petitioners, but rather of determining from the record whether

petitioners along with 480 other longshoremen were put on

notice from the beginning that their misconduct could lead to

their deregistration.

Finally, petitioners refer to Archie v. Chicago Truck Drivers’

Union, 585 E2d 210 (7th Cir. 1978), which is referred to as the

“only ... other” case involving “a union requirement that an

employee maintain an absolutely clean record.” Pet. 30.1° The

case is not at all in point. In Archie an EEOC case was dismissed

at the pleading stage.

Archie has claimed in his first amended complaint that the

Union in effecting his reinstatement required him to sign

a statement of conditions of continued re-employment

which it knew he would be unable to meet and which was never

required of white employees. He has also claimed that the

Union arbitrarily failed to represent him following his

second discharge. These claims constitute factual allega-

tions sufficient to prevent dismissal of his complaint at this early

stage of the proceedings. (Emphasis added). 585 E2d at 220.

This is a far cry from the instant case which presents no is-

sues of racial discrimination (Resp.App. 126) and in which,

after a protracted trial, it appears that the condition imposed

on petitioners—to avoid misconduct which could lead to their

discharge—was one that the union had the right to expect

could be met by responsible employees and which in fact was

easily complied with by 80 percent of petitioners’ fellow

workers.

'®Petitioners overstate the facts; the two documents referred to

are not “union requirement(s).” They are joint rules and a joint ap-

plication for employment.

13

The fact that over 80 percent of the Class B men met the

standards demonstrates that the overwhelming majority of

them were aware of their obligations under the contract

and that the union was remarkably successful at obtaining

permanent status for the Class B men. 617 E2d at 1334;

Pet.App. 24.

D. This Court should not review the merits of a breach of

collective bargaining agreement where there is a final

and binding decision in the contractual grievance

procedure.

In their fifth Question Presented for Review, petitioners ask

this Court to get involved in deciding a breach of collective

bargaining agreement issue.'” They contend that they were de-

registered without good cause and in violation of the common

law of the shop.'*® The court below pointed out that Joint Coast

'TAs their fifth Question Presented for Review, petitioners state:

“Whether or not the union and employer breach the collective

bargaining agreement when they jointly agree to discharge a

large number of members of the bargaining unit without ‘good

cause’ and in violation of the past practices of the ‘common law

of the shop?’

'8Petitioners, citing Day v. United Auto., Aerospace & Agricultural

Implement Workers, 466 F2d 83, 90-92 (6th Cir. 1972) argue that

“[w]here an employee is not at fault he cannot be disciplined, and

discharged for cause means for ‘good cause’”. Pet. 38. These truisms

have no application to this case. In the instant case each petitioner

was found after trial to have been “at fault” for violating one or

more of the rules and was found to have been discharged for one or

more causes which both of the courts below found were “ ": vio-

lation of the LMO rules or the intoxication rule, or failure to make

timely payments of pro rata, or failure to make himself available for

work. Day reversed a summary judgment “before hearing of the

evidence,” 477 E2d at 86, and held that on the facts alleged in that

case, there were issues which required a full trial id. Cf Lewis v.

Magna Am. Corp., 472 E2d 560, 561 (6th Cir. 1972) where the court

that decided Day distinguished it on the facts. Here, of course, the

trial has been had. After weighing the evidence, both courts below

have found that petitioners were at fault for not heeding the

%

'>

14

Committee unanimously agreed that petitioners’ breach of

contract claims were not meritorious and that that decision was

final and binding. 617 E2d at 1327-28; Pet.App. 11-12. In the

absence of a determination that a breach of the duty of fair

representation occurred, petitioners are not entitled to further

review. Vaca v. Sipes, 386 U.S. 171 (1967); General Drivers Local

89 v. Riss & Co., 372 U.S. 517 (1963).

Petitioners seek to avoid the finality of the Coast Committee

decision by implying that that Committee retroactively

amended the contract. Petitioners argue that the court below

erred because it held that “the contract could be amended and

adversely affect” their rights. Pet. 28. The court of appeals

held no such thing. What the court held was:

Thus, there were no rules retroactively turning permitted

actions of [petitioners] into misconduct. The actions found

to be cause for deregistration were all misconduct under

warnings constantly given them and that each petitioner was dis-

charged for one or more of the good causes mentioned above. Day is

simply not analogous to this case.

Equally inapposite is Boone v. Armstrong Cork Co., 384 E2d 285

(5th Cir. 1967) which petitioners cite for the proposition that “a

restriction on an employer's right to discharge at will may be im-

plied.” Pet. 39. Whether that be true or not, neither court below held

in this case that the employer had a right to discharge at will. On

this record, the courts below held that petitioners were not dis-

charged at the will of the employer but for having failed to conform

with well known pre-existing rules of conduct with which 80 percent

of the workers were able to comply without any difficulty. These fin-

dings are not clearly erroneous.

In this case there was no “misunderstanding”, as there was in

Boone, which could be used to forgive petitioners’ violations of the

rules. /d. at 290. Boone furthermore points out, id. at 291, as did

the court of appeals in this case (infra), that a final decision reached

in the grievance-artibration machinery is binding upon the em-

ployee as well as upon the union and the employer.

15

Port Committee rules in effect throughout the period of

[petitioners’] registration. This fact and the observation

that [petitioners] were warned repeatedly that their rec-

ords would be reviewed upon consideration for advance-

ment to Class “A’ status are sufficient to support the dis-

trict court’s conclusion that the union did not breach a

duty to warn of conduct that might lead to deregistration.

617 E2d at 1332; Pet.App. 22.

Petitioners reliance upon Humphrey v. Moore, 375 U.S. 335

(1964), fails for two reasons. First, it is based upon their unwar-

ranted assumption that respondents amended the collective

bargaining agreement. Second, it misreads the opinion. Pe-

titioners argue that such amendment was unlawful because a

majority of this court “rejected” the view of Justices Brennan

and Goldberg in Humphrey v. Moore, that the parties to a collec-

tive bargaining contract are “free by joint action to modify,

amend and supplement their original collective bargaining

agreement.” All the majority said on the point was that it would

“assume” that a joint committee’s power was “circumscribed”

by the agreement (/d. at 345) but added “we need not consider

the problem posed ... if the parties had acted to amend the

provision.” Jd. at n. 7.9

‘The language petitioners quote from Price v. International Bhd.

of Teamsters, 457 F.2d 605, 610 (3d Cir. 1972), Pet. 28, has to do with

the so-called Bill of Rights, 29 U.S.C. §414, and not with Section

301, 29 U.S.C. §185. In any case, in Price, the court of appeals, as

did the court below, found that on the record before it there was no

breach of the duty of fair representation. It is clear from all these

cases that the district courts are determining breach of duty cases

under correct legal standards. However, they obviously come up

with varying results because the facts of the cases are different. The

various courts of appeals, like the court of appeals in this case, ex-

amine the record before them and determine whether or not the

findings of the trial court were clearly erroneous. None of this pres-

ents any question for review by this Court.

7%

16

E. This Court need not grant certiorari to determine that

the court below diligently performed its judicial

function.

In their sixth Question Presented for Review, petitioners

complain that the Ninth Circuit Court of Appeals abdicated its

judicial responsibility.2° Reading the opinion of the court below

should dispel any even colorable merit to this claim. The opin-

ion abounds with references to the evidence and to appropriate

legal authorities. Ignoring these, petitioners stretch to find

proof of abdication.

Petitioners complain that the court below could not have con-

sidered the record because it referred to Class “B” men as

provisional or probationary. Pet. 33. The court was fully aware

of petitioners’ tenure in the industry. In its opinion, the court .

points out that petitioners applied for registration in 1959 and

were deregistered four years later in 1963. 617 E2d at 1324;

Pet.App. 5. The opinion also demonstrates that the court below

knew that petitioners were “full-time.” The court’s opinion fre-

quently refers to the 70 percent availability rule which was ap-

plicable to petitioners. 617 E2d at 1324, 1332-33; Pet.App. 4,

21, 23. The rule defined what “full-time” means in the

longshore industry. Quite clearly the court below understood

that petitioners had been full-time employees for four years.

More importantly, the court below recognized that they held a

*°The sixth Question Presented for Review states: “Whether or

not the Court of Appeals abdicated its responsibility to make an in-

dependent review of the record when it simply approved the fin-

dings of the District Court which were merely xeroxed copies of the

findings submitted by the prevailing parties?”

17

status below that of full Class “A’ registration.” The use of the

words “provisional” or “probationary” is appropriately descrip-

tive of petitioners’ status and raises no question for review by

the Court.??

Petitioners assert that the court abdicated its judicial respon-

sibility because it believed that petitioners were deregistered for

misconduct rather than for failing to satisfy the explicit promo-

tion standards. Pet. 34. This is a semantic squabble. It is true

that all Class “B” men who failed to win promotion were dereg-

istered. It is equally true, as the court of appeals found, that

but for petitioners’ misconduct, they would not have been de-

registered but instead would have been promoted. In any

event, the court’s statement does not justify the conclusion that

it abdicated its responsibility or that this Court should under-

take to rewrite the opinion below.

Petitioners suggest that the court below abdicated its respon

sibility because it misunderstood the pro-rata standard. Pet.

*1The agreement provided for two classes of longshoremen, the

preferred employees, called Class A, and the limited registered

longshoremen, Class B. In operating the hiring hall, the Port Com-

mittee distributed work among longshoremen according to their

registered status. Fully registered Class A longshoremen received

priority for available work. Class B longshoremen had limited rights

to available work, were subject to stricter rules and more stringent

penalties than were applicable to Class A workers ...” 617 E2d at

1323-24; App. 2-3.

*2T he district court defined the status of Class “B” longshoremen

in its finding number 32. It stated: “From the day that each Class

“B” man gained limited registration, he was repeatedly and clearly

informed that he was a second-class category, that he had to keep his

“nose clean,” that he should live up to all the rules, that he could be

deregistered for failing to live up to the rules, and that the union

and the employer were keeping records with respect to his miscon-

duct to which they would give consideration when the time came for

him to be reviewed for promotion.” Pet.App. 38. The record amply

supports this finding. See n. 14 supra.

18

35. Petitioners read the opinion to mean that the court below

believed that petitioners: were deregistered for nonpayment of

pro-rata. The opinion shows no confusion that it was late pay-

ment that led to denial of promotion and then to deregistra-

tion. The court below quoted the relevant standard:

Any Class “B” longshoreman found to have been late in

the payment of his pro-rata eight or more times (or six or

more times with an otherwise blemished record) shall be

considered ineligible for advancement to Class “A’ registra-

tion. 617 E2d at 1324; Pet.App. 4.

Nothing in the court’s opinion suggests that it believed the

standard to be nonpayment rather than late payment.

Petitioners complain that the court below did not point to the

evidence showing that petitioners were told they could lose

their jobs for the various violations of which they were admit-

tedly guilty. The district court found that petitioners were so

informed. The court of appeals in reviewing the record found,

as the record required it to find, that this finding was not

erroneous. In the Appendix to this brief is set forth some of

the evidence from this voluminous record which establishes

that each petitioner was fully informed of the consequences of

failure to maintain a clean record. Petitioners’ quarrel is with

the record—much of it stipulated to by them—not with the

correct application of the legal principles to the record.

Petitioners argue that the court of appeals failed to make an

independent review of the record and that it was “dead wrong”

about the record, etc. Pet. 33-34. In this way, petitioners ask

this Court, under the guise of a certiorari petition, to review

7448 pages of testimony, 1000 exhibits and 293 pages of jointly

stipulated facts. They make this request in the face of the fact

that the court of appeals, without dissent, concluded that the

district court's findings of fact were not clearly erroneous.

In addition to the questions presented and discussed above,

petitioners argue that the Court of Appeals failed to follow the

teachings of this Court and needlessly contributed to existing

conflicts among the circuits in fair representation cases. Pet.

25-28. Neither of these contentions is well taken.

19

Ill

THE COURT OF APPEALS DID NOT DISREGARD

THE “TEACHINGS” OF THIS COURT

NOR DOES ITS DECISION CONFLICT WITH

THE DECISIONS OF ANY OTHER

COURT OF APPEALS

As noted above, the Ninth Circuit remanded Petitioners’ first

appeal in this matter to the district court for reconsideration in

light of this Court’s landmark decision in Vaca v. Sipes, 386 U.S.

171 (1967). Williams v. Pacific Maritime Association, 384 E2d 935

(9th Cir.) cert. denied, 390 U.S. 987 (1967). From that decision

forward, the Ninth Circuit has recognized and followed the

teachings of this Court.

Vaca grew out of Steele v. Louisville & Nashville Railway, 323

U.S. 192, 202 (1944), where this Court held that an exclusive

bargaining agent had a duty to avoid racially discriminatory

conduct. Id. The Court in Vaca extended the duty to encom-

pass not only racial discrimination, but all union conduct which

is “arbitrary, discriminatory, or in bad faith.” 386 U.S. at 190.

By this and other statements in its opinion, the Court estab-

lished “arbitrary conduct” as one of the grounds for a finding

of breach of the duty of fair representation.

Later this Court seemed to eliminate arbitrary conduct as an

independent basis for a breach of the duty of fair representa-

tion. Amalgamated Association of Street, Electric Railway & Motor

Coach Employees v. Lockridge, 403 U.S. 274, 299 (1971). Lock-

ridge dealt principally with NLRB preemption of jurisdiction.

The Court said, in dicta, that for a breach of the duty of fair

representation to occur, “there must be substantial evidence of

fraud, deceitful action or dishonest conduct.” Id.

While the Ninth Circuit in Retana v. Apartment, Motel, Hotel

&¥ Elevator Operators Union Local No. 14, 453 E2d 1018 (9th Cir.

1972) noted the uncertainty which Lockridge appeared to place

on the standards for union action, it concluded that “the Vaca

Opinion’s repeated reference to arbitrary union conduct reflects

a calculated broadening of the fair representation standard.”

Id. at 1023 n.8. Two years later, the Ninth Circuit once again

7%

20

applied this Court’s “arbitrary” standard. Beriauli v. Local 40,

Super Cargoes &F Checkers of the International Longshoremen’s &

Warehousemen’s Union, 501 E2d 258, 264 (9th Cir. 1974). The

interpretation given by the Ninth Circuit in these cases

presaged later decisions of this Court.

Recent Supreme Court articulations of the standards for

union conduct in Hines v. Anchor Motor Freight, Inc., 424 U.S.

554 (1976) and International Brotherhood of Electrical Workers v.

Foust, 442 U.S. 42 (1979) clearly reaffirm the guidelines enun-

ciated in Vaca that arbitrary conduct is an independent ground

for a breach of the duty of fair representation.?* In Foust this

Court was specific: “In particular, a union breaches its duty

when its conduct is arbitrary, discriminatory, or in bad faith.”

(emphasis added). 442 U.S. at 47, citing Vaca, 386 U.S. at

190.

After Hines and Foust, the Ninth Circuit continued to hold

that arbitrary conduct was sufficient to constitute a breach of

the duty of fair representation. In Robesky v. Qantas Empire Air-

ways, Lid., 573 E2d 1082, 1091 (9th Cir. 1978), the Ninth Circuit

held a union could breach its duty of fair representation if it

acted “arbitrarily” even in the absence of bad faith or

discrimination.

In the instant case, the court below demonstrated its knowl-

edge of, and correctly applied, this Court’s holdings in fair

representation cases. In Part III of its opinion, 617 E2d at

1328-34; Pet.App. 12-24, the court of appeals thoroughly

examined the law relating to the duty of fair representation. It

cited and relied upon the very cases petitioners use as a basis of

their argument.

There is no merit in petitioners’ argument that the decision

below conflicts with the Ninth Circuit’s own decision in Retana

v. Apartment, Motel, Hotel and Elevator Operators Union, Local No.

14, 453 E2d 1018 (9th Cir. 1972) or with the Third Circuit's de-

cision in Brady v. Trans World Airlines, Inc., 401 E2d 87 (3rd Cir.

1968). Pet. 27-28. The court below, citing these cases, recog-

23Neither case cited Lockridge

|»

21

nized that Retana and Brady held that “the duty ot fair repre-

sentation requires unions to explain to members of the bar-

gaining unit their rights and duties under the collective bar-

gaining agreement.” 617 E2d at 1331; Pet.App. 19. The court of

appeals applied that principle to this case and held that it was

“convinced that the union supplied tie employees with re-

peated and adequate warnings that the misconduct of which

they were found guilty could be the basis for their failure to ad-

vance to Class A status.” Jd. Indeed the warnings went much

farther and specified that misconduct was cause for “deregis-

tration.” 617 E2d at 1331-32; Pet.App. 19-20. “...[WJarnings

to longshoremen not to engage in such misconduct abound in

the record”. 617 E2d at 1332; Pet.App. 21.

Petitioners’ contention that the court of appeals disregarded

the teachings of this Court and contributed to existing conflicts

with other circuits finds no support in the opinion below or in

the opinions of other courts of appeals. Petitioners’ real quarrel

is not with the legal principles enunciated by the court of ap-

peals, which are unexceptionable, but with the affirmance by

that court of the district court’s findings of fact. However, as we

have pointed out, those findings of fact are amply supported

by the evidence and are not clearly erroneous.

Indeed, the Petitioners concede the point, albeit grudgingly:

“While purporting to apply the ‘bad faith or arbitrariness stan-

dard’ (617 F2d at 1330, A17), the panel actually departed from

it.“ Pet. 27. What the court of appeals decision reveals is that it

did not depart from this standard but that it carefully exam-

ined each of the four criteria utilized in the deregistration pro-

cess and concluded that they were “neither arbitrary, nor irra-

tional. Rather, each is justifiable as relevant to the qualifications

for employment. . .” 617 E2d. at 1333; Pet.App. 23.

Petitioners do not really disagree with the court's statement

of legal principles. They disagree with the court’s affirmance of

the district court’s findings which establish that the union did

not breach its duty of fair representation.

7*

|

22

CONCLUSION

For the foregoing reasons, the writ of certiorari should be

denied.

San Francisco, California

November 24, 1980

Respectfully submitted,

NORMAN LEONARD

Gary J. TORRE

DENNIS T. DANIELS

LILLICK MCHOSE & CHARLES

Attorneys for Respondents