Opposition — Milwaukee Typographical Union No. 23 v. Newspapers, Inc.

coteiahunesl OEE: A ARE OLD

| Ofice Supreme Court, U.S.

FILED

No. 80-2215 AUG3 1981

ent OO

Iu the Supreme Court of the Unite

OCTOBER TERM, 1980

MILWAUKEE TYPOGRAPHICAL UNION

NO. 23,

Petitioner,

vs.

NEWSPAPERS, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

For The Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

DAVID W. CROYSDALE

777 East Wisconsin Avenue

Milwaukee, Wisconsin 53202

Counsel for Respondent

Of Counsel:

Davip C. CHRISTENSEN

HERZ, LEVIN, TEPER,

SUMNER & CROYSDALE, S.C.

777 East Wisconsin Avenue

Milwaukee, Wisconsin 53202

July 30, 1981

HAMMBERSMITH-BREITHAUPT PRINTING CORP., MILWAUKEE, WIS. 53212

No. 80-2215

Inthe Supreme Court of the Rnited States

OCTOBER TERM, 1980

MILWAUKEE TYPOGRAPHICAL UNION

NO. 23,

Petitioner,

vs.

NEWSPAPERS, INC.,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

For The Seventh Circuit

BRIEF FOR RESPONDENT IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the decision of the court of appeals is in

conflict with the decision of another federal court of ap-

peals on the same matter.

2. Whether the court of appeals has decided this case

in a way in conflict with applicable decisions of this

Court.

3. Whether the court of appeals has decided an impor-

tant question of federal law which has not been, but

should be, settled by this Court.

PARTIES

The parent entity of the Respondent is The Journal

Company. The Respondent has no subsidiaries but is af-

filiated with the following entities: MJE Corporation;

Tempo Communications, Inc.; Midwestern Relay Co.;

Trumbull Printing Co.; Perry Printing Co.; WITMJ,

Inc.; and Teltron, Ine.

2

TABLE OF CONTENTS

Page

Questions Presented sai |

Parties : |

Opinions Below ... 4

Statement of the Case 4

Summary of Argument 5

Argument 6

I. The Case Below Was Correctly Decided and Is

in Accord With The Decisions of Other Courts

of Appeal and This Court 6

II. This Case Calls for No Elaboration of The

Principles Set Out in the Steelworkers Trilogy 11

Conclusion 12

TABLE OF AUTHORITIES

Cases:

Boise Cascade Corp. v. United Steelworkers of

America, 588 F. 2d 127 (Sth Cir. 1979), cert.

denied 444 U.S. 830 (1979) 8

City Electric, Inc. v. Local Union 77, IBEW, 517

F. 2d 616 (9th Cir. 1975), cert. denied 423 U.S.

894 (1975) 7,8

F. W. Woolworth Co. v. Miscellaneous Warehouse-

men’s Union, 629 F. 2d 1204 (7th Cir. 1980) ........ 9

General Warehousemen & Helpers v. Standard

Brands, Inc., 579 F. 2d 1282 (Sth Cir. 1978) ........ 10

Page

Hart v. Overseas National Airways, Inc., 541 F. 2d

386 (3rd Cir. 1976) 10

International Brotherhood of Electrical Workers v.

Olin Corp., 471 F. 2d 468 (6th Cir. 1972) ............ 10

Johnson Bronze Co. v. United Auto Workers, 621 F.

2d 81 (3rd Cir. 1980) 9

Monongahela Power Co. v. Local 2332, IBEW, 566

F. 2d 1196 (4th Cir. 1976) 9

Torrington Co. v. Metal Products Workers Union,

362 F. 2d 677 (2nd Cir. 1966) 8

United Steelworkers of America v. American Manu-

facturing Co., 363 U.S. 564 (1960) . 5

United Steelworkers of America v. Enterprise

Wheel & Car Corp., 363 U.S. 593 (1960) ....5, 6, 7, 8,

10, 12

United Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960) ..............-.-0+ 5

United Steelworkers of America v. W. C. Bradley

Co., 551 F. 2d 72 (5th Cir. 1977) 10

Other Authorities:

Kaden, Judges and Arbitrators: Observations on the

Scope of Judicial Review, 80 COLUM. L. REV.

267 (1980) 11

St. Antoine, Judicial Review of Labor Arbitration

Awards: A Second Look at Enterprise Wheel and

Its FP sgeny, 75 MICH. L. REV. 1137 (1977) .... 11

Hogler, Industrial Due Process and Judicial Review

of Arbitration Awards, 31 LABOR LAW

JOURNAL 570 (1980) 12

4

OPINIONS BELOW

The opinion of the District Court (App. of the Pet., p.

A33) is reported at 482 F. Supp. 1238 (E.D. Wis. 1980).

The opinion of the Court of Appeals for the Sev-

enth Circuit together with denial of petition for rehear-

ing (App. of the Pet., p. A53) is reported at 639 F. 2d

386 (7th Cir. 1981).

STATEMENT OF THE CASE

The Statement of the Case set out in the Petition (at pp.

12-26) is in most respects adequate. However, a serious

mischaracterization occurs at page 18 of the Petition with

the contention that Arbitrator Warns decided the Hen-

drix System and its “impact” upon the bargaining unit

were expressly within the three distinct topics reserved

for arbitration by Section 4 of the labor agreement. In

fact, Warns sanctioned the introduction of the system and

the respondent’s work assignments with respect to same

in part 1 of his award (App. of the Pet., p. A26). He

then proceeded, however, to fashion parts 2 and 3 of the

award, although admittedly without basis in Section 4 or

other language in the labor agreement (App. of the Pet.,

p. A23).

Further, respondent objects to petitioner’s characteriza-

tion of the significance of the votes of three judges in the

Court of Appeals for a rehearing en banc in this case

(Pet., p. 29). There is no basis whatever to suppose that

these three judges hold the views on the merits which

petitioner attributes to them (See App. of the Pet., p.

A68, n. 1).

5

SUMMARY OF ARGUMENT

In reviewing the award at issue, the Court of Appeals

took a restrained and limited view of its role, adhering to

the principles set out in United Steelworkers of America

v. Enterprise Wheel and Car Corp., 363 U.S. 593 (1960).

Accordingly, the award was tested for its fidelity to the

labor agreement. Upon finding the award in irreconcil-

able conflict with the subject matters clearly marked out

for arbitration in the contract, the Court invalidated the

award without further inquiry, either into the reasoning

of the arbitrator or his remedy. The authorities cited by

the petitioner acknowledge the validity of the Court’s

approach. Further, there being no ambiguity in the

award, cases cited by petitioner with respect to the re-

mand of uncertain or incomplete arbitration awards are

inapposite.

There is no merit to petitioner’s assertion that this case

demonstrates a need for further refinement of the stan-

dards of judicial review set ovt in the Steelworkers Trilo-

gy.’ The commentators adduced by petitioner recognize

the validity of the procedure here utilized by the Court

of Appeals and call for the elucidation of the Trilogy only

in situations where a reviewing court has displaced the

arbitrator and undertaken its own analysis of ambiguous

contract language. Such is not the case now before this

Court.

1 United Steelworkers of America v. American Mfg. Co., 363 U.S.

564 (1960) ; United Steelworkers of America v. Warrior & Gulf Navi-

gation Co., 363 U.S. 574 (1960) ; and, in particular, Enterprise Wheel

and Car, supra.

6

ARGUMENT

I, THE CASE BELOW WAS CORRECTLY DE-

CIDED AND IS IN ACCORD WITH THE DE-

CISIONS OF OTHER COURTS OF APPEAL

AND THIS COURT.

In reviewing the award of Arbitrator Warns, the Court

of Appeals took a clear and forthright approach applying

standards established in Enterprise Wheel & Car. There

this Court stated:

... [A]n arbitrator is confined to interpretation and

application of the collective bargaining agreement;

he does not sit to dispense his own brand of industrial

justice. He may of course look for guidance from

many sources, yet his award is legitimate only so long

as it draws its essence from the collective bargaining

agreement. When the arbitrator’s words manifest an

infidelity to this obligation, courts have no choice but

to refuse enforcement of the award. 363 U.S. at 597.

Accordingly, the Court of Appeals here reviewed the

language of Section 4 of the labor agreement, the only

portion of the contract even arguably applicable to the

introduction of the Hendrix system (App. of the Pet., p.

A64) . Section 4 provides that in the event a new technolog-

ical process is introduced into composing room work,

three topics and three topics only’ are subject to arbitra-

tion: the method of operation, the complement of men

required or the retraining of affected employees. Yet Arbi-

trator Warns, after confirming respondent’s right to in-

troduce the Hendrix system and its work assignments with

respect thereto {Anp. of the Pet., p. A26), proceeded to

insert a fourth topic: the “impact” or effects of the new

2 The parties had agreed in Section 5 of the contract that their com-

plete obligations to one another were expressed in that agreement. (App.

of the Pet., p. A64, n. 7).

7

technology on members of the bargaining unit. As indi-

cated by the Court of Appeals, “impact” goes far beyond

any of the three topics specifically subject to arbitration

(App. of the Pet., pp. A64-65). Upon concluding that“...

the award itself demonstrates an infidelity to the plain

restrictive terms of the contract” (App. of the Pet., p.

A65), the Court’s inquiry ceased. No examination of the

arbitrator’s reasoning or remedy was made (Jd.). In addi-

tion to Enterprise Wheel & Car, the Court relied upon

City Electric, Inc. v. Local Union 77, Int'l Brotherhood of

Electrical Workers, 517 F. 2d 616 (9h Cir. 1975), cert.

denied 423 U.S. 894 (1975), a case closely analogous to the

one at bar. There, the court refused enforcement of the

arbitrator’s order that the parties bargain a daily stipend

or travel allowance. In a two part award the arbitrator

had determined (1) the employer-contractor was not re-

quired to pay a stipend under the “job headquarters”

contract provision as contended by the Union yet (2) the

employer-contractor should still be required to negotiate

such a stipend because the prevailing practice of other

emr ‘oyer-contractors in the area was to negotiate ad hoc

agreements for stipends.

The Ninth Circuit forthrightly rejected the second part

of the arbitrator’s award, reasoning

It is not the function of an arbitrator, under this

agreement or traditionally, to decide in what respects

the contract in question should be modified in order

to bring it into line with agreements of other employ-

ers. Contract modifications are not traditionally mat-

ters for arbitration. It is the function of the arbitrator

to resolve disputes as to what the contract itself pro-

vides — as to what the rights of the parties are under

the contract then in force. ... 517 F. 2d at 619.

In the instant case, Arbitrator Warns found no contract

violation yet proceeded in Part 2 of the award to impose

8

a duty to negotiate which is wholly without basis in the

labor agreement.°

Since there is no ambiguity in either the pertinent con-

tract language or the Warns award, petitioner’s two prin-

cipal lines of argument fail. First it is contended that the

decision of the Court of Appeals herein reflects a dishar-

mony among the circuits on the proper scope of judicial

review of arbitral awards. This argument, however, is pre-

mised upon the supposition that the Court of Appeals

was merely reinterpreting an ambiguous contract provi-

sion. In fact, as demonstrated above, the court engaged

in the restrained and limited type of review specified in

Enterprise Wheel & Car and endorsed by case authori-

ties cited by petitioner (Pet. pp. 31-34). In Botse Cas-

cade Corp. v. United Steelworkers of America, 588 F. 2d

127 (Sth Cir. 1979), cert. denied 444 U.S. 830 (1979),

unlike the present case, an ambiguous contract pro-

vision was at issue. Further, the court noted “...

courts will enforce clear contractual limitations on

the authority of the arbitrator. [Cit. om.] In con-

trast, the employer in this case does not argue that the

collective bargaining agreement barred the arbitrator

from deciding the issue in dispute”. 588 F. 2d at 129, n. 2.

Similarly, Torrington Co. v. Metal Products Workers

Union, 362 F. 2d 677 (2nd Cir. 1966) :

Although the arbitrator’s decision on the merits is

final as to questions of law and fact, his authority is

contractual in nature and is limited to the powers

conferred in the collective bargaining agreement. .. .

The question of the arbitrator’s authority is really

8 As for petitioner's attempt to distinguish City Electric (Pet., p. 32),

it is difficult to see how the Labor-Management Committee in that case

(517 F. 2d at 618) is any less a “specific procedure for dispute resolu-

tion” than the Joint Standing Committee in Section 4 of the labor

agreement herein (See App. of the Pet., p. A8).

9

one of his contractual jurisdiction, and the courts

cannot be expected to place their stamp of approval

upon his action without making some examination

of his jurisdiction to act. 362 F. 2d at 680 & n. 6*

Finally, F. W. Woolworth Co. v. Miscellaneous Ware-

housemen’s Union, 629 F. 2d 1204 (7th Cir. 1980) and

Johnson Bronze Co. v. United Auto Workers, 621 F. 2d

81 (3rd Cir. 1980) are both inapplicable here since each

involved competing interpretations by arbitrators and re-

viewing courts of ambiguous contract provisions.

Second, petitioner appears to argue that there is some

ambiguity in the Warns award in the use of its term “im-

pact” and that therefore the award is merely incomplete

and need only be remanded to the arbitrator for clarifica-

tion (Pet., pp. 34-35). However, as indicated in the de-

cision of the Court of Appeals there is no doubt what-

ever about the meaning of that common labor law term

and no need to engage in any “interpretation” to reach

that meaning (App. of the Pet., pp. A64-65). “Impact”

means such topics as layoffs, terminations. bonuses

and the like, all items clearly outside the scope of the

three specific subjects for arbitration delineated in Sec-

tion 4 of the labor agreement. Finally, if there were any

* See also, Monongahela Power Co. v. Local No. 2332, IBEW, 566

F. 2d 1196, 1198-99 (4th Cir. 1976):

The powers of an arbitrator are not unlimited. He derives his

authority from and is bound by the terms of the contract from

which he draws his authority; and while ‘[H]e may of course

look for guidance from many sources, yet his award is legitimate

only so long as it draws its essence from the collective bargaining

agreement.’ His function is confined to the interpretation and

application of the collective bargaining agreement under which

he acts and, while he may give his own construction to ambiguous

language, he is without any authority to disregard or modify plain

and unambiguous provisions. This is a well-established principle

of law. ... (footnotes omitted).

10

doubt that “impact” is to be understood in its commonly

accepted meaning, that doubt is removed by Warns’ ex-

press reference to decisions of the National Labor Rela-

tions Board (App. of the Pet., App. A23-25). This refer-

ence makes it clear that Warns had in mind the same

meaning of “impact” as was understood by the Court of

Appeals. Consequently, there is no need for remand to

arbitration. There can be no doubt that on remand the

arbitrator’s remedy would embrace the forbidden areas

of layoffs, terminations, bonuses, etc. For the foregoing

reasons, the cases cited by petitioner in support of remand

are inapplicable: Enterprise Wheel & Car, supra (am-

biguity in award of back pay) ; General Warehousemen

& Helpers v. Standard Brands, Inc., 579 F. 2d

1282 (Sth Cir. 1978) (remand for calculation of damages

in context of admitted contractual violations by employ-

er); United Steelworkers of America v. W. C. Bradley

Co., 551 F. 2d 72 (Sth Cir. 1977) (remand for considera-

tion in light of new evidence) ; Hart v. Overseas National

Airways, Inc., 541 F. 2d 386 (3rd Cir. 1976) (remand to

district court for clarification on the question of liability

and then to arbitrator for ministerial calculation of dam-

ages); and Int’l Brotherhood of Electrical Workers v.

Olin Corp., 471 F. 2d 468 (6th Cir. 1972) (remand of

ambiguous award for computation of lost earnings).

In summary, petitioner’s entire assault upon the valid-

ity of the decision of the Court of Appeals is based upon

the premise that there is ambiguity in the contract lan-

guage or in the award. There is no such ambiguity in this

case and the analysis utilized by the Court of Appeals is

in harmony with decisions of this Court and other Circuit

Courts of Appeal.

11

II. THIS CASE CALLS FOR NO ELABORATION

OF THE PRINCIPLES SET OUT IN THE

STEELWORKERS TRILOGY.

As demonstrated above, there is no conflict among the

Circuit Courts of Appeal on the proper scope of judicial

review where, as here, the contract and arbitration award

are clear and unambiguous. Petitioner, however, also

cites various commentators for the proposition that a re-

finement of principles in the Trilogy is now required

(Pet., pp. 30-31, 36). Yet these commentators follow

the case law to the effect that a reviewing court must at

least satisfy itself that the arbitrator has stayed within his

grant of power in the contract. For example, Professor

Kaden states “Certain qualifications to the principle of

finality are well settled. Thus, if a contract clearly denies

the arbitrator jurisdiction over a particular complaint, a

court must refuse to enforce an award that he was with-

out authority to issue.” 80 COLUM. L. REV. 267, 296

(1980). Similarly, Professor St. Antoine in discussing

exceptions to the principle of judicial deference to arbi-

tration awards:

... The appropriate scope of judicial review should

be determined by the particular agreement in any

case, not by anything inherent in the arbitration or

collective bargaining process. I should have thought

this was pretty clear from Enterprise Wheel itself.

For all the bouquets thrown arbitrators and arbitra-

tion by Justice Douglas, it is ultimately the ‘collec-

tive bargaining agreement’ from which an award

must draw its ‘essence’ in order to be valid and en-

forceable.

... [T]he arbitrator remains the creature of contract,

and the parties retain the power to remove such dis-

ore from his purview as they see fit. 75 MICH. L.

EV. 1137, 1142, 1150 (1977),

12

and Raymond L. Hogler, 31 LABOR LAW JOURNAL

570, 571 (1980) : “... it is nevertheless established that an

award which is ‘contrary to the terms of the collective

bargaining contract’ will not be upheld”.

Even if it were conceded that in some instances review-

ing courts have erred by merely displacing with their own

analysis an arbitrator’s interpretation of ambiguous con-

tract language, this is certainly not such a case. Any at-

tempt to curb excesses in those cases could only be dictum

here. Moreover, there is at present ample admonitory

language in the Trilogy emphasizing the arbitrator’s

power to interpret contract language (e.g. Enterprise

Wheel & Car, 363 U.S. at 599).

CONCLUSION

For the foregoing reasons it is respectfully submitted

that this petition for a writ of certiorari should be denied.

Respectfully submitted,

DAvID W. CROYSDALE

777 East Wisconsin Avenue

Milwaukee, Wisconsin 53202

Counsel for Respondent

Of Counsel:

Davip C. CHRISTENSEN

HERZ, LEVIN, TEPER,

SUMNER & CROYSDALE, S.C.

777 East Wisconsin Avenue

Milwaukee, Wisconsin 53202

July 30, 1981