Petition — James J. Liotta v. National Forge Company, 629 F.2d 903 (1980) (No.80-1115)

Supreme Court, U.S, _

Fit-ED

80-1115 io: ale nes

No. MICHAEL RODAK, JR., CLERK

————————e————e——————eeeee—eeeeeeoe eee

In THE

Supreme Court of the United States

OCTOBER TERM, 1980

JAMES J. LioTTA,

Petitioner / Cross- Respondent

Vv.

NATIONAL FORGE COMPANY

Respondent / Cross- Petitioner

CROSS-PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

Richard H. Zamboldi, Esquire

ELDERKIN, MARTIN, KELLY,

MESSINA & ZAMBOLDI

800 Commerce Building

Erie, Pennsylvania 16501

(814) 453-7129

Counsel for Respondent / Cross- Petitioner

QUESTION PRESENTED

Is defendant entitled to summary judgment in a Section 1981

discriminatory discharge action where defendant has submitted

conclusive evidence of a lawful motive for plaintiffs discharge

and plaintiffs only verified opposition to the motion is a charge

of discrimination filed with the Equal Employment Opportunities

Commission? 3

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ii

TABLE OF CONTENTS

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III. Statement of Jurisdiction ..........00eeeseeeees 2

IV. Statutes and Rules Involved ......... ap 3

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VI. Argument in Support of the Petition

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Appendix A- Opinionand Order of the United States District

Court for the Western District of Pennsylvania ..... A-l

Appendix B - Opinion of the United States Court of Appeals

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Appendix C - Judgment of the United States Court of

Appeals for the Third Circuit ........cccccccsccess A-22

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I, TABLE OF AUTHORITIES

Cases Page

Boys Markets, Inc. v. Retail Clerks Union, Local 770,

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First National Bank of Arizona v. Cities Service Co., 391

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United States ex rel Kolton v. Halperin, 260 F. 2d 590

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Statutes and Rules

Labor Management Relations Act, Section 301, 29 U.S.C.

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II. OPINIONS BELOW

The opinion of the United States District Court for the Western

District of Pennsylvania on the question presented is not officially

reported, and is reproduced as Appendix A to this Cross-Petition.

The opinion of the United States Court of Appeals for the Third

Circuit, reversing the District Court on the question presented,

is not yet officially reported, and is reproduced as Appendix B

to this Cross-Petition.

Ill. STATEMENT OF JURISDICTION

Petitioner presents a Cross-Petition for Writ of Certiorari pur-

suant to Rule 19.5 of the Rules of the Supreme Court of the United

States. The original Petition for Writ of Certiorari was received

by counsel for Cross-Petitioner on December 10, 1980. The judgment

of the United States Court of Appeals for the Third Circuit was

issued on September 10, 1980 (App. C). This Court has jurisdiction

pursuant to 28 U.S. C. § 1254 (1).

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IV. STATUTES AND RULES INVOLVED

Section 42 U.S.C. § 1981 provides, in pertinent part, as follows:

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to make

and enforce contracts, to sue, be parties, give evidence, and

to the full and equal benefit of all laws and proceedings for

the security of persons and property as is enjoyed by white

citizens, and shall be subject to like punishment, pains, penalties,

taxes, licenses, and exactions of every kind, and to no other.

Rule 56 of the Federal Rules of Civil Procedure provides, in

pertinent part, as follows:

(b) For Defending Party. A party against whom a claim,

counterclaim, or cross-claim is asserted or a declaratory judg-

ment is sought may, at any time, move with or without support-

ing affidavits for a summary judgment in his favor as to all or any

part thereof.

(c) Motion and Proceedings Thereon. The motion shall be

served at least 10 days before the time fixed for hearing. The

adverse party prior to the day of hearing may serve opposing

affidavits. The judgment sought shall be rendered forthwith

if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.

A summary judgment, interlocutory in character, may be

rendered on the issue of liability alone although there is a

genuine issue as to the amount of darnages.

(e) Form of Affidavits; Further Testimony; Defense Re-

quired. Supporting and opposing affidavits shall be made

on personal knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.

Sworn or certified copies of all papers or parts thereof referred

wwe

to in an affidavit shall be attached thereto or served therewith.

The court may permit affidavits to be supplemented or opposed

by depositions, answers to interrogatories, or further affida-

vits. When a motion for summary judgment is made and

supported as provided in this rule, an adverse party may not

rest upon the mere allegations or denials of his pleading, but

his response, by affidavits or as otherwise provided in this

rule, must set forth specific facts showing that there is a genuine

issue for trial. If he does not so respond, summary judgment,

if appropriate, shall be entered against him.

Be a

Vv. STATEMENT OF THE CASE

Cross-Respondent was discharged from his employment with

Cross-Petitioner on March 16, 1976. The collective bargaining

agreement between Cross-Respondent’s union and Cross-Petitioner

provided for final and binding arbitration of such a discharge. The

arbitration provisions of the agreement were pursued and an arbi-

tration award, dated August 3, 1976, sustained Cross-Respondent’s

discharge.

On March 16, 1978, Cross-Respondent filed the instant action

through a two count complaint alleging distinct causes of action

under Section 301 of the Labor Management Relations Act, as

amended, 29 U.S.C. § 185 and under 42 U.S.C. § 1981. The Section

301 count is not at issue in this Cross-Petition. Cross-Respondent’s

civil rights count (hereinafter “Count II”) alleged that Cross-

Respondent, a caucasian, was discharged in retaliation for his efforts

as union president on behalf of black employees of Cross-Petitioner.

On July 11, 1979, the District Court granted Cross-Petitioner’s

post discovery Motion for Summary Judgment, concluding that

no genuine issue of material fact existed with respect to Count II.

Cross-Respondent appealed to the Court of Appeals which

reversed the District Court’s grant of summary judgment on Sep-

tember 10, 1980.

Cross-Petitioner now seeks a Writ of Certiorari to review the

question raised by its Motion for Summary Judgment with respect

to Count II.

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VI. ARGUMENT IN SUPPORT OF THE

CxOSS-PETITION FOR WRIT OF CERTIORARI

1. Federal Rule of Civil Procedure 56 (c), requires that Cross-

Petitioner’s Motion for Summary Judgment, be granted unless

a “genuine issue of material fact” exists warranting trial on the

allegations of the complaint. In the instant case, the factual allega-

tions in Count II of the complaint consisted of a solitary statement

that Cross-Respondent was “terminated” in part “because of his

constant fight for equal rights” and a statement that Cross-

Respondent had referred other employees’ complaints to the City

of Erie Human Relations Commission.

Cross-Petitioner’s Motion for Summary Judgment was supported

by extensive documentary materials establishing beyond question

that Cross-Respondent’s discharge was motivated by his partici-

pation in an unlawful work stoppage at Cross-Petitioner’s plant

and his defiance of injunctive orders of the United States Disirict

Court issued on the authority of Boys Markets v. Retail Clerks

Union, Local 770, 398 U.S. 235, 90S. Ct. 1583 (1970). The materials

submitted by Cross-Petitioner included such virtually unassailable

factual materials as extensive references to transcribed court

proceedings, Cross-Respondent’s own court testimony, and orders

of the District Court including the Court’s specific findings that

the Cross-Respondent’s union - of which he was president - was in

contempt of the Court and that the union’s officers - including

Cross-Respondent - had specifically failed to comply with the

Court’s injunctive orders. (See Opinion of the District Court,

Appendix A.) The District Court was in a unique position to weigh

the evidentiary value of Cross-Petitioner’s submissions inasmuch

as the same court had handled the injunctive proceedings which

formed the exclusive factual background of Cross-Respondent'’s

discharge from employment.

Against this overwhelming evidence, the only competent material

submitted by Cross-Respondent was a copy of a Complaint he had

filed with the Pittsburgh Kegional Office of the Equal Employment

Opportunities Commission and the customary charge affidavit.

The text of this brief affidavit, which the Court of Appeals found

to be sufficient tocreate a genuine issue of fact, is set forth in Appendix

B, opinion of the Court of Appeals.

The Court of Appeals failed altogether to deal with the rather

obvious proposition that no genuine issue exists on this point

unless the asserted cause for discharge is found to be a pretext - a

conclusion which is inconceivable in light of the evidence.

In addition, the Court of Appeals totally disregarded the potential

impact of this Court’s decision in First National Bank of Arizona

v. Cities Service Co., 391 U.S. 253, S. Ct. 1575 (1968). In First

National Bank of Arizona, this Court clearly proscribed mere

reliance upon the allegations of a complaint to defeat a properly

supported Rule 56 Motion. 391 U.S. at 289, 88 S. Ct. at 1592-93.

Cross-Respondent’s own pleading in a collateral action is, for

purposes of the proper application of Rule 56, not meaningfully

distinguishable from his complaint in the instant case, upon which

he could clearly not rely under First National Bank of Arizona.

In reversing the District Court, the Court of Appeals manifestly

disregarded the laudable purpose of Rule 56; has encouraged the

unnecessary trial of facts and the attendant burden upon judicial

resources; and has so far departed from the proper application of

the Rules of Civil Procedure that review by this Court is justified.

2. The multiplicity of administrative and judicial remedies

available to an individual in the not-unusual position of Cross-

Respondent cannot be ignored. In addition to the instant action

in District Court, he attempted unsuccessfuly to challenge his

discharge through contractual grievance procedures, the Occupa-

tional Safety and Health Review Board, the National Labor

Relations Board, and the Equal Employment Opportunity Com-

mission. All of these administrative and quasi-judicial bodies have

necessarily created the prospect of claims with identical underlying

facts and, often, identical or closely related questions of law as well.

In the instant case, the Court of Appeals has sanctioned reliance

upon a pleading filed with one of these agencies to defeat a well-

supported and otherwise unassailable Rule 56 Motion. Unques-

tionably, if this reliance were placed upon only the complaint

filed in this action, the District Court would have been entitled to

disregard the averments of the complaint. By its decision, the Court

of Appeals has brought into question the propriety, under Rule

56, of a party’s reliance upon a self-serving pleading filed in another

forum, a consideration which, considering the potential number

of such forums, has serious implications for the efficacy of Rule

56 as a device for avoiding unnecessary trials.

Indeed, Rule 56 (e) was amended by this Court in 1963 to add a

specific proscription against sole reliance upon pleadings in a

response to a contrary line of cases which had developed in the

Third Circuit. See, e.g., United States, ex rel, Kolton v. Halperin,

260 F.2d 590 (3rd Cir., 1958) and the Notes of the Advisory Com-

mittee on Civil Rules, notes to Rule 56.

The question of the extent to which a District Court may consider

the averments of administrative pleadings in determining the

adequacy of a response to a properly supported Rule 56 Motion

carries significant implications for the efficient administration of

justice and is worthy of this Court’s review.

3. The question for which review is sought is raised on Cross-

Petition for a Writ of Certiorari. The application of Rule 20.5 of

this Court requires that, before the instant Petition may be granted,

the Court must act favorably upon Cross-Respondent’s initial

Petition for Writ of Certiorari.

Should the Court grant Cross-Respondent’s initial Petition,

the addition of the question raised by this Cross-Petition to the

matters to be reviewed would impose no : gnificant additiun2!

burden upon the Court or its resources. Granting this Cross-Petition

would present the Court with an opportunity to provide guidance

to the lower federal courts upon the question presented and to

correct the manifest error committed by the Court of Appeals in

an efficient and expeditious manner.

oy Se

Vil. CONCLUSION

For the reasons set forth above, the Court should issue a Writ

of Certiorari to the United States Court of Appeals for the Third

Circuit to correct a manifest error in its ruling on the question

presented.

Respectfully submitted,

Richard H. Zamboldi, Esquire

ELDERKIN, MARTIN, KELLY,

MESSINA & ZAMBOLDI

800 Commerce Building

Erie, Pennsylvania 16501

(814) 453-7129

Counsel for Respondent /

Cross Petitioner

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APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JAMES J. LIOTTA

v. Civil Action No. 78-25 Erie

NATIONAL-FORGE COMPANY

Memorandum Opinion

KNOX, District Judge.

Plaintiff, formerly the President of Steelworkers’ Local 1573,

was discharged from his employment with defendant on March

16, 1976 following his participation in a work stoppage at defendant’s

Erie, Pennsylvania plant which began on March 3, 1976 and ended

on March 11, 1976. Under the terms of the collective bargaining

agreement in effect at the time, plaintiff filed a grievance which was

denied by an arbitrator on August 3, 1976. On March 16, 1978,

plaintiff filed this action alleging that (1) the union breached its

duty of fair representation in processing his grievance (see § 301 of

the National Labor Relations Act, 29 U.S.C. § 185) and (2) although

plaintiff is white, defendant discriminated against him by discharging

him because of his espowinl of the rights of defendant’s black

employees (see 42 U.S.C. § 1981). Defendant initially filed a motion

for summary judgment on both counts of the complaint on August 10,

1978. Determination of this motion was postponed pending the

completion of discovery. On April 2, 1979, defendant renewed its

motion. Extensive briefs and supporting affidavits and exhibits were

received from both parties and oral argument was heard by the court

on May 22, 1979. After careful consideration of the issues presented

by defendant’s motion, the court has determined that the motion will

be granted with respect to both counts of the complaint.

(I) Count I - 29 U.S.C. § 185

We begin with the rule that summary judgment can be granted

only where there is no genuine issue as to any material fact. Further,

all inferences and doubts must be resolved against the moving

ha i ie

party. Ely v. Hall’s Motor Transit Co., 590 F.2d 62 (3rd Cir. 1978).

Ordinarily, where a collective bargaining agreement provides

for the arbitration of grievances, the arbitrator’s decision is final

and binding on the parties and not subject to review by the courts.

Humphrey v. Moore, 375 U.S. 335 (1964). In cases in which the

union breaches its duty of fair representation in handling the

employee’s grievance, however, this finality rule is inapplicable.

Vaca v. Sipes, 386 U.S. 171 (1967). The Supreme Court in Hines

v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976), held that a

plaintiff must prove (1) “an erroneous discharge” and (2) “the Union’s

breach of duty [of fair representation] which (3) “taint{s] the decision

of the [arbitrator],” Id., at 572, in order to come within this excep-

tion to the finality rule. Thus, in order to prove his § 301 claim,

plaintiff must establish that defendant breached the collective

bargaining agreement by discharging him, that the union breached

its duty of fair representation in its conduct of the arbitration, and

that this breach by the union contributed to the arbitrator’s erro-

neous decision.

(A) Propriety of Plaintiff's Discharge

The collective bargaining agreement in effect at the time of

plaintiff's discharge provides:

ARTICLE VII

Section 8. ...

(c) In the event of any violation of the provisions of sub-

paragraph (b) above [forbidding work stoppages], the Union

shall make immediate, sincere and diligent effort to terminate

all such improper action and any employee or employees

taking part in, causing or inciting any such improper action

may be subjected to disciplinary action including discharge,

which disciplinary action need not be the same for all such

employees. In the event of any arbitration arising out of

Company action pursuant to this subparagraph (c), the sole

question for determination by the Arbitrator shall be whether

or not the grievant did take part in, or did cause, or did incite,

whichever is charged, the improper action. (Emphasis added).

(Exhibit A to defendant's Answer).

Gang “Ep

Under the explicit terms of this agreement, the arbitrator’s role

was limited “> determine only whether or not each grievant did

take part in the illegal strike.” Arbitrator’s Decision at 9, Exhibit B

to defendant’s Answer. One of the bases for the arbitrator’s denial

of plaintiff's grievance in this case was his finding that plaintiff

failed to comply with a March 8, 1976 request made by Chief Judge

Weber of this court during a hearing on a motion for contempt

that the officers of the Local, including plaintiff, would report to

work by the 7 a.m. shift on March 9, 1976 and then clock out and

travel to the court at 10 a.m., if necessary, to continue the contempt

hearing. The primary dispute in this case in connection with the

propriety of the discharge concerns the nature of this request and

plaintiffs knowledge of it.

At the arbitration hearing, defendant’s counsel, Richard Zamboldi

(Zamboldi), testified as to his recollection of the agreement reached.

He stated that at Judge Weber’s behest, all counsel agreed that

the union officers would lead the rank and file members into the

plant at 11 p.m. on March 8 or at 7 a.m. on March 9, at the latest.

(Tr. 298-307, defendant’s summary judgment exhibit A). Affidavits

of the union attorneys present on that day were submitted to the

arbitrator on plaintiffs behalf. These affidavits state generally that

none of these attorneys stated to anyone that plaintiff agreed to

this request. (Defendant’s summary judgment exhibit B).

The most persuasive evidence concerning the nature of the March

8 agreement reached in Judge Weber’s chambers is contained in the

transcript of an in-chambers conference held on the following day

together with the testimony of plaintiff at a March 22 contempt

hearing and at the arbitration hearing held on June 12, 1976. At

the March 9 in-chambers conference, Judge Weber stated:

THE COURT: ... But we had a pretty clear statement yes-

terday, and one of the few.things that will stick in my mind,

because when it was said that they would try to get back to

work tomorrow, it was asked what about the officers, if they

have to come to court, and it was a clear understanding in

this court’s mind that they would report for work and then

come down here. For their convenience the case was not

Be Bir

scheduled until 10:00 a.m. ... But I am sure that it was made

clear yesterday that the union officers whose presence might

be required at this hearing would report. Furthermore, this

hearing was scheduled at 10:00 this morning, and only tenta-

tively scheduled, conditioned on a return to work. ... (Tr. 4,

5, 18, defendant’s summary judgment exhibit D).

Subsequently, Judge Weber issued an order holding the union

and its members in contempt of court. (Defendant’s summary

judgment exhibit F). The order states in pertinent part that:

... despite specific telegraphic requests by the Company, the

Local Union Officers and Committeemen have failed and

refused to return to work, [aJnd . . . despite the urgings of this

Court, the employees of Plaintiff represented by Local Union

1573 have failed and refused to return to work at 11:00 P.M.,

March 8, 1976 and at 7:00 A.M., March 9, 1976 ....

On March 22, 1976, during further contempt proceedings held

before Judge Weber, plaintiff testified that he was confused about

whether he was to report at 11 p.m. or 7 a.m., but he acknowledged

that he understood that the agreement was that the officers would

check into work and then report to court. (Tr. 23-4, defendant’s

summary judgment exhibit C). At his arbitration hearing held on

June 12, 1976, plaintiff initially denied that he had an obligation

to report for work. Later, however, after examining the March 22

transcript, plaintiff testified that such a commitment “might have

been” made. (Tr. 442, defendant’s summary judgment exhibit A).

Plaintiff argues that Zamboldi’s testimony was improper and

that it could have been rebutted by live testimony from attorneys

John English, Jr., George Schroeck, and George Levin, each of

whom was present at the March 8 conference and each of whom

has presented an affidavit to the court denying that any agreement

that plaintiff would lead a group of employees into the plant was

made. (Plaintiff's summary judgment exhibits 6a-6e). Although

Zamboldi’s testimony may have been excludable under DR 5-102(A),

the court finds, as discussed in Part II of this opinion, that its admis-

sion into evidence does not require a reversal of the arbitrator’s

sis: ed ii

decision. Further, the court notes that the original affidavits of

English, Schroeck and Levin were received by the arbitrator.

(Defendant’s summary judgment exhibit B). The supplemental

affidavits submitted to the court in connection with this motion

are not significantly different from the originals.

The court has thoroughly reviewed the voluminous transcripts

and affidavits bearing on the March 8 conference and has concluded

that the plaintiff was obligated to report to work on March 9, that

he failed to do so, and that his discharge was not erroneous. The

court finds significant the fact that, for the convenience of the union

officers, the hearing on March 9 was not scheduled until 10 a.m.,

thus affording them an opportunity to punch in at work at 7 a.m.

and then report to the court. Judge Weber’s recollection of this

scheduling arrangement is substantiated by the deposition testimony

of George Levin. (Tr. 22, plaintiff's summary judgment exhibit 8e).

It is highly improbable that Judge Weber would have scheduled

the hearing at a time which permitted the officers first to clock in

at the plant and then travel to the courthouse if there had been no

agreement that they would, in fact, report to work on March 9.

Although plaintiff testified that he was confused as to whether he

was to report at 11 p.m. on March 8 or at 7 a.m. on March 9, the

evidence supports the arbitrator’s finding that he knew he was to

report. His failure to report at either hour justifies his discharge

under the terms of the contract.

In addition to his participation in the work stoppage, plaintiff's

discharge was also based on his failure to fulfill his duties as a union

officer. (Plaintiff's summary judgment exhibit 7o). Plaintiff con-

tends that the current state of the law as interpreted by the National

Labor Relations Board is that an employer may not discipline a

union officer in a manner different than it disciplines any other

employee because of the officer’s failure to perform the duties

incumbent upon himasan officer. Precision Casting Co., 233 NLRB

No. 35, 96 LRRM 1540 (1977)!. The court, however, finds the

'The court wishes to advise counsel that the government does not pro-

vide loose leaf services for the court. Therefore, when a West citation is

unavailable, the court requests counsel to provide copies of the significant

opinions upon which they rely.

pibdp GR

reasoning of the United States Court of Appeals for the Seventh

Circuit in Indiana & Michigan Electric Co. v. N.L.R.B., 101 LRRM

2475 (1979) persuasive. The Court in that case rejected the Precision

Casting view and stated that:

Differentiating between union officers and rank-and-file in

meting out discipline for participating in a clearly illegal strike

did not penalize or deter the exercise of any protected employee

right. We believe that the employer was entitled to take into

account the union officials’ greater responsibility and hence

greater fault, and that the resulting different treatment of

union officials could not be reasonable considered inherently

destructive of important employee rights. Id., at 2478.

Thus, it was proper for defendant to discharge plaintiff, the union

president, while retaining other employees who also participated

in the strike.

(B) Duty of Fair Representation

Even if plaintiff's discharge was erroneous, the decision of the

arbitrator is final unless plaintiff establishes a breach by the union

of its duty of fair representation which caused the arbitrator to reach

an incorrect decision. In order to establish the requisite breach of

duty, plaintiff must prove that the union’s conduct was “dishonest,

in bad faith, or discriminatory.” Hines, supra, at 571. Errors in

judgment or negligence on the part of the union representative are

insufficient.

In the instant case, four of plaintiff's objections to the manner

in which the union’s attorney, Frank Lucchino (Lucchino), repre-

sented him at the arbitration hearing merit attention. First, plaintiff

argues that the union breached its duty of fair representation when

Lucchino failed to object to Zamboldi’s testimony on the ground

that he violated DR 5-102(A) of the Code of Professional Respon-

sibility when he was examined by a member of his law firm abou‘

the March 8 conference. Although Lucchino may have made an

error in judgment by failing to object to this testimony, and although

a proper objection may have resulted in its exclusion, this failure

does not rise to the level of dishonest, bad faith, or discriminatory

74

cn, al oa

conduct. Even if this testimony had been excluded, the arbitrator

still would have had the transcript of Liotta’s testimony at Judge

Weber’s March 22 hearing before him. (See defendant’s summary

judgment exhibit A, at 443). This exhibit contains most of the sub-

stance of Zamboldi’s testimony and an admission by plaintiff that

he knew he was to report to work on March 9. Therefore, even in

the absence of Zamboldi’s testimony, as significant as it may have

been to the arbitrator’s decision, the arbitrator was confronted with

other, substantially similar evidence. Consequently, we cannot say

that the exclusion of Zamboldi’s testimony would have resulted

in a different decision.

Similarly, plaintiff's objection to Lucchino’s failure to call Levin,

Schroeck, and English to rebut Zamboldi’s testimony is insufficient

to support a finding of breach of duty. Affidavits from each of these

attorneys were admitted into evidence (see App. to defendant’s

summary judgment exhibit B), thereby precluding cross-examination

of the attorneys by the company’s counsel. The decision not to call

these individuals was, at most, an error of judgment.

Plaintiff's third objection to the union’s representation of him

relates to Lucchino’s failure to protest the continuation of the hearing

due to the unavailability of plaintiff's physician, Dr. Jack H. Marshall.

Medical reports from Dr. Marshall, however, were received into

evidence. (Tr.424-5, defendant’s summary judgment exhibit A).

The court notes that although plaintiff testified at the hearing about

both his illness and Marshall’s unavailability, he at no time requested

that Marshall’s testimony be considered or stated that his appearance

was crucial. The court concludes that the failure to seek a postpone-

ment of the hearing until Dr. Marshall could be present does not

constitute a breach of duty by the union.

Finally, plaintiff contends that although his personal counsel,

James Logan (Logan), was present for most of the hearing, h= was

not in the room when Zamboldi testified and he was at the hearing

as an observer only and not as a participant. Consequently, plaintiff

argues that Logan’s responses to the arbitrator at the conclusion

of the hearing that, “Your honor, we have absolutely no objection

to the way this hearing before the Arbitrator was conducted . . . It

uae ve use

[Lucchino’s representation of Liotta] was very good,” (Tr. 449-50,

defendant’s summary judgment exhibit A), should not be taken

literally. As discussed previously, Lucchino’s failure to object to

Zamboldi’s testimony and his subsequent decision not to call other

witnesses to rebut that testimony do not amount to a breach of duty.

Therefore, Logan’s absence during Zamboldi’s testimony and his

inability to object to it as a participant are irrelevant. Further, plain-

tiffs argument that Logan did not wish to offend the arbitrator by

objecting to the conduct of the hearing and his contention that the

arbitrator's questions to Logan concerning his evaluation of the

hearing were improper are without merit. Had plaintiffs personal

representative been dissatisfied with the conduct of the hearing, he

was given the opportunity to register his complaint on the record. Not

only did he fail to object, but he stated affirmatively that Lucchino’s

handling of the hearing was “very good.” Such a response negates

any claim of unfair representation.

Consequently, the court finds that the union’s representation of

plaintiff was not perfunctory or conducted in bad faith, dishonestly,

or discriminatorily. Individually and collectively, any errors in

judgment made by the union’s attorney do not constitute a breach

of the union’s duty of fair representation. Therefore, plaintiff's § 301

claim against defendant must fail.

(II) Count Il - 42 U.S.C. § 1981

Count II of plaintiff's complaint is brought pursuant to 42 U.S.C.

§ 1981 which provides:

All persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and

enforce contracts, to sue, be parties, give evidence, and to the

full and equal benefit of all laws and proceedings for the security

of persons and property as is enjoyed by white citizens, and

shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.

Although plaintiff is white, he contends that his discharge resulted,

at least in part, from retaliation against him for his espousal of the

rights of defendant’s black employees.

sis a acs

It is well settled that § 1981 prohibits racial discrimination in

private employment against whites as well as blacks. McDonald v.

Santa Fe Trail Transportation Co., 427 U.S. 273 (1976). A § 1981

cause of action may also be based on allegations of retaliation against

a white person for advocating the rights of blacks. See Sullivan v.

Little Hunting Park, 396 U.S. 229 (1969); Winston v. Lear-Siegler,

Inc., 558 F.2d 1266 (6th Cir. 1977); DeMatteis v. Eastman Kodak

Co., 511 F.2d 306 (2nd Cir. 1975); National Organization for Women

v. Sperry Rand Corp., 457 F. Supp. 1338 (D. Conn. 1978); Garcia

v. Rush-Presbyterian-St. Luke’s Med. Ctr., 80 F.R.D. 254 (N.D.IIL.

1978); Cubas v. Rapid Am. Corp., Inc., 420 F. Supp. 663 (E.D. Pa.

1976).

Recently, the Supreme Court held that a male employee who

claimed that he was discharged for supporting equal employment

opportunities for females could not invoke 42 U.S.C. 1985 (3) to

redress a corporate conspiracy to violate Title VII of the Civil Rights

Act of 1964. Great Am. Fed. Savings & Loan Assoc. v. Novotny,

47 U.S.L.W. 4681 (U.S. June 11, 1979). The Court reasoned that

§ 1985 (3) is a remedial statute, and that permitting Title VII rights

to beasserted through § 1985 (3) would alter Title VII's time limitations

and bypass its administrative enforcement.

Novotny, however, does not preclude plaintiff's § 1981 count in

this case. Unlike § 1985 (3), § 1981 is a substantive statute. Further,

the Supreme Court has stated that, “the remedies available under

Title VII and under § 1981, although related, and although directed

to most of the same ends, are separate, distinct, and independent.”

Johnson v. Railway Express Agency, 421 U.S. 454, 461 (1975).

Finally, in Novotny the Court distinguished § 1981 cases from the

case before it. The Court concluded that:

This case thus differs markedly from the cases recently decided

by this Court that have related the substantive provisions of

last century’s Civil Rights Acts to contemporary legislation

conferring similar substantive rights. In those cases we have

held that substantive rights conferred in the 19th century were

not withdrawn, sub silentio, by the subsequent passage of the

modern statues . . . [In Johnson v. Railway Express Agency,

— A-10 —

[supra], we held that the passage of Title VII did not work an

implieu repeal of the substantive rights to contract conferred

by the [Civil Rights Act of 1866] and now codified, at 42 U.S.C.

§ 1981. 47 U.S.L.W. at 4684.

We have determined, of course, that the arbitrator’s decision

upholding plaintiff's discharge under the collective bargaining agree-

ment was correct. Contrary to defendant’s argument, however, the

arbitrator’s finding is not Linding on this court in a civil rights action.

In Alexander v. Gardner-Denver Co., 415 U.S. 36(1974), the Supreme

Court held that

.. . the federal policy favoring arbitration of labor disputes

and the federal policy against discriminatory employment

practices can best be accommodated by permitting an employee

to pursue fully both his remedy under the grievance arbitration

clause of a collective bargaining agreement and his cause of

action under Title VII. The federal court should consider the

employee’s claim de novo. The arbitral decision may be admitted

as evidence and accorded such weight as the court deems appro-

priate [footnote omitted]. Id., at 59-60.

Although Alexander was a Title VII case, we see no reason to dis-

tinguish its holding in this case.

In dual-motivation employment discrimination cases, the Supreme

Court has held that the plaintiff has the initial burden of showing that

his conduct was constitutionally protected and that this conduct

was a substantial or motivating factor in the defendant’s decision

to discharge him. The burden then shifts to the defendant to establish

that it would have discharged the employee “even in the absence of

the protected conduct.” Mt. Healthy City Board of Ed. v. Doyle,

429 U.S. 274, 287 (1977). This “but for” test has been applied in

§ 1981 cases. East Texas Motor Freight v. Rodriguez, 431 U.S.

395 (1977).

Although under Alexander the arbitral decision is no bar to

plaintiff's claim, plaintiff has failed to meet his burden of establishing

that racial discrimination was a substantial factor in the defendant's

— A-I1 —

decision to discharge him under Mt. Healthy. The only evidence

which plaintiff has submitted to the court in support of his allegations

is a letter from Bobby Kaigler, Compliance Officer of the Erie

Human Relations Commission (EHRC), which states that plaintiff

testified before the EHRC on behalf of black complainants who

were discharged by defendant and that “It is the belief of this office

that Mr. James Liotta was terminated from his job because of his

constant fight for ‘Equal Rights’ of all men.” (Plaintiff's summary

judgment exhibit 7n). This letter is not an affidavit and it has not

been notarized. Consequently, the conclusory “belief” expressed in

the letter, which is not based on personal knowledge, is insufficient

to create or support an inference that racial discrimination played

#71y part in plaintiff's discharge. Olympic Junior, Inc. v. David

Crystal, Inc., 463 F.2d 1141 (3rd Cir.1972). No genuine issue of

material fact supporting plaintiff's § 1981 claim has been presented

by plaintiff's evidence. Therefore, defendant’s motion for summary

judgment will be granted on Count II.

An appropriate order will be entered.

/s/ William Knox

U.S. District Judge

Dated: July 11, 1979

Cc:

Counsel of record

°-*.

— A-12 —

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JAMES J, LIOTTA

Vv. Civil Action No. 78-25 Erie

NATIONAL FORGE COMPANY

ORDER

AND NOW, to wit, July 11, 1979, for the reasons set forth in the

accompanying memorandum opinion,

ITISORDERED that defendant's motion for summary judgment

on Counts | and II of plaintiff's complaint be and the same hereby

is granted.

IT IS FURTHER ORDERED that judgment be and the same

hereby is entered in favor of the defendant and against the plaintiff.

/s/ William Knox

U.S. District Judge

© &.

Staughton Lynd, Esq.

804 Metropolitan Tower Bldg.

Youngstown, Ohio 44593

M. L. Carr, Esq.

127 W. 6th St. Erie, PA. 16501

Richard H. Zamboldi, Esq.

8th Floor - Commerce Bidg. Erie, Pa. 16501

— A-13 —

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 79-2124 and 79-2252

JAMES J. LIOTTA, an individual,

Appellant in No. 79-2124

v.

NATIONAL FORGE COMPANY,

Appellant in No. 79-2252

ON APPEAL FROM THE UNITED STATES DISTPICT

COURT FOR THE WESTERN DISTRICT

OF PENNSYLVANIA

(D.C. Civ. No. 78-0025)

Argued: July 8, 1980

Before: SEITZ, Chief Judge, VAN DUSEN,

and HIGGINBOTHAM, Circuit Judges

(Filed: September 10, 1980)

STAUGHTON LYND (Argued)

804 Metropolitan Tower Building

Youngstown, Ohio 44501

M. L. CARR

127 West 6 Street

Erie, Pennsylvania 16501

Attorneys for Appellant

in No. 79-2124 and

Cross-Appellee in

No. 79-2252

— ft

RICHARD H. ZAMBOLDI (Argued)

RICHARD W. PERHACS

Elderkin, Martin, Kelly,

Messina & Zamboldi

800 Commerce Building

Erie, Pennsylvania 16501

Attorneys for Appellee

in No. 79-2124 and

Cross-Appellant in

No. 79-2252

Opinion of the Court

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

The appellant, James J. Liotta, formerly President of the

Local 1573 of the United Steelworkers of America. AFL-CIO

(the Union), was discharged from his employment with the Na-

tional Forge Company (the Company) on March 16, 1976. This

followed his participation in a work stoppage at the Company’s

Erie, Pennsylvania plant which began on March 3, 1976 and

ended on March 11, 1976. Liotta filed a grievance pursuant to

the terms of the collective bargaining agreement then in effect.

His grievance was denied by an arbitrator on August 3, 1976.

On March 16, 1978, he filed this action alleging first that his

discharge violated the collective bargaining agreement in viola-

tion of Section 301 of the National Labor Relations Act, 29

U.S.C. §185 and that the arbitrator’s contrary decision resulted

from the Union’s breach of its duty of fair representation. Se-

cond, he claimed that the Company discharged him because of

his espousal of the rights of the Company’s black employees,

discriminating against him in violation of 42 U.S.C. §1981.

Liotta appeals from the entry of summary judgment for the

Company. The Company cross appeals on the ground that Liot-

ta’s complaint is barred by the applica = statutes of limitations.

We conclude that his claim under Section 301 is time barred,

— A-15 —

that his claim under 42 U.S.C. §1981 is not time barred, and

that summary judgment was inappropriate on his Section 1981

claim because of the existence of material issues of fact. We will

therefore affirm in part and reverse in part.

I.

The first question we must answer is whether Liotta’s Section

301' cause of action was untimely and therefore whether the

Company’s motion to dismiss should have been granted. The

Company’s motion was based on the ground that Liotta’s

claims were barred by the three-month statute of limitations of

the Pennsylvania General Arbitration Act, Pa. Stat. Ann. tit. 5

§173 (Purdon 1963). The district court held that the six-year

limitations period for actions upon a contract applied.

We believe the district court erred. In UAW v. Hoosier Car-

dinal Corp., 383 U.S. 696, 704-05 (1966), the Supreme Court

held that ‘‘the timeliness of a §301 suit. . .is to be determined, as

a matter of federal law, by reference to the appropriate state

statute of limitations.’’ Courts within this circuit have con-

sistently applied the three-month limitations period to suits

seeking to vacate an arbitrator’s award. Cole v. United

Steelworkers, 441 F.Supp. 1346, 1351 (M.D. Pa. 1977), aff’d

mem., 588 F.2d 819 (3d Cir. 1978); Siskey v. General

Teamsters, Chauffeurs, 419 F. Supp. 48, 50 (W.D. Pa. 1976);

UMWA v. Jones & Laughlin Steel Corp., 378 F.Supp. 1206,

' Section 301(a) provides, in relevant part:

(a) Suits for violation of contracts between an employer and a

labor organization representing employees in an industry affec-

ting commerce as defined in this chapter, or between any such

labor organizations, may be brought in any district court of the

United States having jurisdiction of the parties, without respect

to the amount in controversy or without regard to the citizenship

of the parties.

29 U.S.C. §185.

*%

-?

— A-16 —

1211-12 (W.D. Pa. 1974); International Brotherhood v. Motor

Freight Express, 356 F.Supp. 724, 726 (W.D. Pa. 1973).

It is important to identify the nature of Liotta’s first cause of

action since the three-month statute of limitations of Penn-

sylvania’s General Arbitration Act would apply only where one

seeks to vacate an arbitrator’s award. A fair reading of Liotta’s

complaint demonstrates that he seeks to vacate the arbitrator’s

decision. Paragraph 22 of his complaint alleges that he ‘‘was un-

fairly represented before, during and after Arbitration by the’’

attorney for the International Union. App., at 10. Paragraph 23

alleges that the ‘‘Arbitration itself was improper and unfair.’’

App., at 12. Indeed, he sought to litigate before the district

court the same claim he presented for arbitration, that of im-

proper discharge.

Moreover, the fact that Liotta alleges that the arbitration

award is invalid due to the Union’s breach of its duty of fair

representation does not change the limitations period because

the suit here is against the Company and not the Union. Thus, it

is clear that Liotta was dissatisfied with and simply seeks to

upset the arbitrator’s decision that the Company did not

wrongfully discharge him.

The result we reach comports with the general federal policy

favoring arbitration as a means of resolving labor disputes,

United Steel Workers of America v. Warrior & Gulf Navigation

Co., 363 U.S. 574, 578 (1960), and with the federal labor policy

that favors the application of shorter limitations period. In Jn-

ternational Union, UAW v. Hoosier Cardinal Corp., 383 U.S.

696, 707 (1966), the Supreme Court stated:

[R]elatively rapid disposition of labor disputes is a goal of

federal labor law. Since state statutes of limitations gover-

ning contracts not exclusively in writing are generally

shorter than those applicable to wholly written

agreements, their applicability to §301 actions comports

with that goal.

os MET on

Courts in other jurisdictions have consistently applied the

statute of limitations pertaining to appeals from arbitration

awards rather than the longer statute of limitations governing

actions bottomed on written contracts when such actions seek to

vacate arbitration awards. E.g. Barbarino v. Anchor Motor

Freight, Inc., 421 F.Supp. 1003 (W.D.N.Y. 1976); DeLorio v.

United Parcel Service, Inc., 401 F.Supp. 408 (D.Mass. 1975);

Hill v. Aro Corp., 275 F.Supp. 482 (N.D. Ohio 1967); contra,

Smart v. Ellis Trucking Co., 580 F.2d 215 (6th Cir. 1978), cert.

denied, 440 U.S. 958 (1979).

We therefore conclude that Liotta’s first cause of action seek-

ing review and vacation of the arbitration award was untimely

and that the Company’s motion to dismiss should have been

granted.

The next issue we must consider concerns Liotta’s claim

under 42 U.S.C. §1981.? As a threshold matter, however, we

must first address the Company’s assertion that this claim is

also time barred.

As with Section 301, 42 U.S.C. §1981 provides no explicit

period of limitations and courts are bound to apply the most ap-

propriate limitations period provided by state law. Johnson v.

*Section 1981 provides:

All persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and en-

force contracts, to sue, be parties, give evidence, and to the full

and equal benefits of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens, and shall be

subject to like punishment, pains, penalties, taxes, licenses, and

exactions of every kind, and to no other.

42 U.S.C. §1981

’S

i |

— A-18 —

Railway Express Agency, 421 U.S. 454, 462 (1975). This court

in Davis v. U.S. Steel Supply, 581 F.2d 335 (3d Cir. 1978), held

that the six-year statute of limitations for contracts under Penn-

sylvania law applied to a Section 1981 claim of unlawful

discharge. We therefore conclude that Liotta’s second cause of

action under 42 U.S.C. §1981 is not barred as untimely.

With regard to the merits of Liotta’s Section 1981 claim, the

district court granted the Company’s motion for summary judg-

ment for the following reasons:

The only evidence which plaintiff has submitted to the

court in support of his allegations is a letter from Bobby

Kaigler, Compliance Officer of the Erie Human Relations

Commission (EHRC), which states that plaintiff testified

before the EHRC on behalf of black complainants who

were discharged by defendant and that ‘‘It is the belief of

this office that Mr. James Liotta was terminated from his

job because of his contant fight for ‘Equal Rights’ of all

men.”’ (Plaintiff’s summary judgment exhibit 7n). This let-

ter is not an affidavit and it has not been notarized. Conse-

quently, the conclusory ‘‘belief’’ expressed in the letter,

which is not based on personal knowledge, is insufficient

to create or support an inference that racial discrimination

played any part in plaintiff’s discharge. Olympic Junior,

Inc. v. David Crystal, Inc., 463 F. 2d 1141 (3rd Cir. 1972).

No genuine issue of material fact supporting plaintiff’s

claim has been presented by plaintiff’s evidence.

Liotta v. National Forge Company, Civ. No. 78-0025 (W.D.

Pa. July 11, 1979) at 11-12, reprinted in App., at 45-46.

Liotta claims, however, that he also submitted to the district

court the charge he filed with the Equal Employment Oppor-

tunity Commission (EEOC) listing a number of instances where

he encouraged black employees to file charges against the Com-

pany. The affidavit which was attached to his EEOC charge and

which was also before the court, alleged that the Company

— A-19 —

discharged him in retaliation for his activities in support of the

rights of black employees. Specifically, he averred:

I have consistently attempted to eliminate discrimination

as practiced by Respondent Employer against Black

members of Local 1573 of the United Steelworkers of

America. The Respondent Company systematically has

violated the non-discrimination clause known as Appendix

I of the collective bargaining agreement between National

Forge and Local 1573. Some of the ways I opposed

discrimination, included the following: I encouraged a

large number of Union members to report their allegations

of discrimination to the Erie Human Relations Commis-

sion; since I began duties as President of Local 1573 in Oc-

tober, 1975. I encouraged a number of Black workers to

file charges with such Commission, and advised them of

my knowledge of the best way to remedy the specific acts

they were complaining of. I also fought the company on a

day-to-day basis in trying to make conditions fair for all

workers. I helped to take a case to arbitration on behalf of

Black worker, Dennis Toliver. Shortly before my

discharge, I had notified the Respondent Employer that

two other grievances of Black workers (the grievances of

Troy Johnson and Aaron Clanton) regarding discrimina-

tion claims, were going to be fought through the arbitra-

tion phase of the grievance procedure. I have appeared at a

number of hearings of the Erie Human Relations Commis-

sion regarding the claims of discrimination by Black

workers. Respondent Company has a history of unfair

discharges of Black workers, and I have been active in op-

posing such practices.

App., at 51-52.

Our review of this document leads us to conclude that ge-

nuine issues of material fact are raised by Liotta’s specific

allegations. These are matters that clearly are in dispute and

— A-20 —

they are material because if proven they could support a finding

that the Company’s actions against Liotta were motivated by a

racial animus.

In addition, contrary to the Company’s argument, it is clear

that Liotta has set forth specific facts, not merely conclusory

allegations of wrongdoing by the Company. Moreover, the

Company has not denied that these documents were in fact

before the district court as part of the record. Instead, the Com-

pany challenges the EEOC affidavit as not complying with the

technical requirements of Fed. R. Civ. P. 56(e) in that it was not

alleged to be based on personal knowledge. That this argument

is specious is evident from a reading both of the affidavit and of®

Rule 56(e). First, Rule 56(e) does not require that the affiant

state affirmatively that the averments are based on personal

knowledge. Rather, the Rule provides:

Supporting and opposing affidavits shall be made on per-

sonal knowledge, shall set forth such facts as would be ad-

missible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.

A reading of Liotta’s EEOC affidavit shows that it was ‘‘made

on personal knowledge,”’ ‘‘set{s] forth . . . facts as would be ad-

missible in evidence,’’ and ‘‘show[s] affirmatively that [he] is

competent to testify to matters stated therein.’’

The fact that these allegations may not be proved at trial if the

jury chooses to believe the Company is irrelevant at this stage.

What is relevant is that the parties have focused on specific, per-

tinent issues of fact and disagree strenuously about them. We

therefore conclude that summary judgment was inappropriate

and that the case should be remanded on the Section 1981 claim.

See Bryson v. Brand Insulations, Inc., No. 79-2042, slip op. at 7

(3d Cir. Apr. 30, 1980).

— A-21 —

Ill.

Accordingly, we will affirm the district court’s judgment as to

Count I of the appellant’s complaint. We will reverse the district

court’s grant of summary judgment on the appellant’s Section

1981 claim and remand for further proceedings.

A True Copy:

Teste:

Clerk of the United States Court

of Appeals for the Third Circuit

— A-22 —

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 79-2124 and 79-2252

James J. Liotta, an individual,

Appellant in No. 79-2124

Vv.

National Forge Company,

Appellant in No. 79-2252

(D.C. Civil No. 78-0025 Erie)

On Appeal From The United States District Court

For The Western District Of Pennsylvania

Present: SEITZ, Chief Judge and VAN DUSEN

and HIGGINBOTHAM, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from the United

States District Court for the Western District of Pensylvania

and was argued by counsel on July 8, 1980.

On consideration whereof, it is now here ordered and adjudg-

ed by this Court that the judgment of the said District Court,

filed July 11, 1979, be, and the same is hereby affirmed as to the

district court’s grant of summary judgment on Count I of the

Appellant’s claim under section 301 of the National labor Rela-

tions Act, 29 U.S.C. § 185; the district court’s grant of summary

judgment on Count II of the Appellant’s claim under 42 U.S.C.

§ 1981 be and the same is hereby reversed, and the cause is

remanded for further proceedings consistent with the opinion of

this Court.

ATTEST:

/s/ Illegible

September 10, 1980 C rk

’