Petition — Brotherhood of Teamsters & Auto Truck Drivers, Local 70 v. California Trucking Ass'n

BrorHernoop or Teamsters & Auto Truck Drivers,

Local. 70,

Petitioner,

vs.

Catirornia Tauckine Association, et al.,

Respondents.

PETITION FOR V RIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Davin A. RosenFreip

COUNSEL OF RECOR.

Victor J. Van Boure

Van Bourne, ALLEN, WEINBERG

& Rocsr

875 Battery Street

San Francisco, CA 94111

Telephone: (415) 864-4000

Attorneys for Petitioner

BOWNE OF GAN FRANCISCO, INC. * ISO NINTH ST. © &.F..CA 84103 * (415) 864-2900

=> *

QUESTIONS PRESENTED

1. Whether issues of contractual application and inter-

pretation which are determinative of the obligation to sub-

mit to the grievance procedure shuuld be decided by the

court or remitted to the parties’ established procedure for

resolution where that grievance procedure is broadly de-

fined?

2. Whether a presumption against arbitrability applies

to the question of whether parties have agrecd to decide

what disputes are subject to a contractual grievance pro-

cedure when there is contractual language which arguably

remits such questions to the parties’ grievance procedure

rather than the court?

3. Is exhaustion of contractual remedies jurisdictional

to any contract claim brought under 29 U.S.C. section 185

so that the issue of jurisdiction may be raised at any time?

4. Whether the implied no-strike obligation of Team-

sters Local 174 v. Lucas Flour, 369 U.S. 965 (1962), is ap-

plicable to a collective bargaining agreement which in-

cudes a grievance procedure but specifically prohibits

final and binding arbitration!

5. Whether the implied no-strike obligation of Lucas

Flour extends to a union’s dispute over the terms and con-

ditions of a new agreement, which dispute is not subject

to a grievance procedure designed to resolve disputes over

the interpretation of the agreement?

6. Whether the court could infer a no-strike obligation

inte a portion of the collective bargaining agreement in

7 2

2

——

contravention to the parties’ settled interpretation of the

relevant language where that interpretation is the result

of a final and binding decision of a joint labor-management

committee f

7. Whether damages may be assessed for stranger

picketing where there was no clear and unmistakable

waiver of the union's right to engage in picketing outside

of its bargaining unit?

SP h N Pw YP

pes

°

SEREEEBE

RS 8 &

FF. as. Pa ees N N

iii

LIST OF INTERESTED PARTIES

California Trucking Association

Associated Freight Lines

Consolidated Freightways

Pacific Motor Trucking Company

Crescent Truck Lines

California Motor Transport/California Motor Express

Delta Lines, Inc.

Haslett Co.

Lodi Truck Service

East Texas Motor Freight System (successor to Valley

Copperstate)

. System 99

T. LM. E.-DC, Ine.

Western Gillette, Inc.

Alltrans Express of California, Inc.

Transcon Lines

Di Salvo Trucking Co.

Lee Way Motor Freight, Inc. (successor to Pacific Ex-

press Transportation)

Morris Draying Company

Navajo Freight Lines, Inc.

Frank’s Trucking

Pacific Intermour‘ain Express Company

eee 5.

Vv

TABLE OF OONTENTS

Page

Questions presented i

List of interested parties iii

I

Opinions and orders below 1

II

Jurisdiction 2

III

Statutory provisions 2

IV

Statement of the case 2

V

Where the parties have agreed to a broad grievance

procedure, under the presumption of arbitrability

created in the steelworkers trilogy, issues of contrac-

tual interpretation which may determine the arbi-

trability of a dispute should be determined through

the grievance procedure 6

VI

If exhaustion of contractual remedies is jurisdictional

to a claim alleging a violation of a collective bar-

gaining agreement, then the union’s argument re-

garding the interpretation of Article 8(d) could be

raised on appeal 12

VII

Where there is no provision for final and binding arbi-

tration, there is no implied no-strike obligation 15

in units covered by its collective bargaining agree-

IX

The cow t could not ignore the interpretation of a con-

ment

- Grievance Committee

tract settled through a final decision of the National

R X

The union's no-strike pledge runs only to its members

Amalgamated Clothing and Textile Workers Union v.

Ratner Corp., 602 F.2d 1363 (9th Cir. 1979)

Andrews v. Louisville & Nashville RR, 406 US. 320

(1972)

Associated General Contractors of Illinois v. Team-

sters, 486 F. 2d 972 (7th Cir. 1973)

Atkinson v. Sinclair Refining Co., 370 U.S. 238 (1962)

Automobile Transport, Inc. v. Ferdnance, 420 F.Supp.

75 (E.D. Mich. 1976)

Best Cranes, Inc. v. Local 139 1.U.0.E., 98 LRRM 299

(E.D. Wise. 1976)

Brotherhood of Teamsters and Auto Truck Drivers,

Local No. 70, 194 N.L.B.B. 674, enf d 470 F.2d 509

(9th Cir. 1972) cert. den. 414 U.S. 821 (1973) —........

Brotherhood of Teamsters, Local 70, 195 N.L.B.B. 454

(1972)

Buffalo Forge Co. v. United Steel Workers, 428 U.S.

1¹

14

397 (1976) 17. 20

California State Council v. Associated Genera! Contrac-

tors, 648 F.2d 527 (9th Cir. 1980) cert. granted on

other issues, U.S. (1981)

Carpenters District Council v. Brady Corp., 513 F.2d 1

(10th Cir. 1975)

CBS, Inc. v. International Photographers, LATSE, 603

F.2d 1061 (2nd Cir. 1979)

Chattanooga Mailers v. Chattanooga News-Free Press,

524 F.2d 1305 (6th Cir. 1975)

Chauffers, Teamsters and Helpers Local Union No. 795

v. Yellow Transit Freight Lines, 370 U.S. 711 (1962)

14

Og A Fe 282 9 r

, "5 5 4 * ie

Tana or Aurnorrries Crrep

Cass

ras Page

Coordinating Committee v. United Steelworkers, 436

F Supp. 208 (W.D. Pa. 1977) 18

20

Delaware Coca-Cola Bottling Co. v. General Teamster

Local 326, 624 F.2d 1182 (3d Cir. 1980)

Desert Coca-Cola Bottling Co. v. General Sales Drivers

Local 14, 335 F.2d 198 (9th Cir. 1964)

Drake Bakeries, Inc. v. Local 50, Bakery Workers, 370

US. 254 (1962) 6,14

Eazor Express, Inc. v. LB. T., 520 F.2d 951 (3d Cir.

1975), cert. denied, 424 U.S. 935 (1976)

Elgin, Joliet & Eastern R. Co. v. Burley, 325 U.S. 711

(1945) 17

Emery Air Freight Corp. v. Local Union 295, 449 F.2d

586 (2d Cir. 1971), cert. denied, 405 U.S. 1066 (1972) 18

Francesco’s B, Inc. v. Hotel and Restaurant Employees

Local 28, 659 F.2d 1383 (9th Cir. 1981) 10

Friedrich v. Local No. 780, 515 F.2d 225 (5th Cir. 1975) 7

General Drivers v. Riss and Co., 372 U.S. 517 (1963) - 16

Granny Goose Foods v. Teamsters Local 70, 415 U.S.

~

423 (1974) 3

G. T. Schjeldahl Co. v. Local Lodge 1680, 393 F.2d 502

(Ist Gr. 1968) 7

Hardline Electric v. IB. E. W., 1547, 680 F.2d 620 (1982) 14

Hoover Motor Express Co. v. Teamsters Local 327, 217

F. 2d 49 (6th Cir. 1954) 15

International Association of Bridge Ete. v. Superior

Court, 80 Cal.App.3d 346 (1978) 7

. . .

Cys

Wee 3

+

ix

Teste or AvTHonrrizs CI

Cases

International Union of Operating Engineers v. Flair

Builders, Inc., 405 U.S. 487 (1972)

International Union, United Automobile Workers v.

LT. T., 508 F.2d 1309 (8th Cir. 1975)

Iodice v. Calabrese, 512 F.2d 383 (2d Cir. 19755

N

9

18

LT. T. World Communications, Inc. v. Conimunication

Workers, 422 F. 2d 77 (2nd Cir. 1970)

Johnston-Tombighee Furniture Mannfacturing Co. v.

re ot OS

Cir. 1979) 0

John Wiley and Sons, Inc. v. n

(1964)

Jessop Steel Co. v. United Steel Workers, 423 F. 1

172 (W. D. Pa. 1977)

Kauf man & Broad v. W eden

men, 607 F. 2d 1104 (5th Cir. 1979)

Kentucky West Virginia Gas Co. v. O. CA. W. Local

No. 3-510, 549 F. 2d 407 (6th Cir. 1977)

King Bridge Co. v. Otoe County, 120 U.S, 225 (1897)

Local Union No. 4 v. Radio 1380, Inc., 469 F.2d 610

(8th Cir, 1972) —

. ane es ae (ou

Cir. 1981)

Los Angeles Paper Bag Co. v. Printing Specialties and

ie ORR WE, eee (9th Cir. 1965)

— 10, 11

Marble Products Co. v Local 155, United Stone Work-

ers, 335 F.2d 468 (5th Cir. 1964) — ; é

7

Tal or AutHorities Crrep

Case

Marshall Hale Memorial Hospital v. Hospital & Insti-

tutional Workers Union, Local 250, 647 F.2d 38

(9th Cir. 1981)

Metal Product Workers Union 1645 v. Pinch: Cate

pany, 358 F.2d 103 (2d Cir. 1966)

NLRB v. C. & C. Plywood Corp., 385 U.S. 421 (1.967)

NLRB v. Southern California Edison, 646 F.2d 1352

(9th Cir. 1981)

Nolde Bros., Inc. v. Bakery and Confectionary Work-

ers, 430 U.S. 243 (1977) —....

OCAW, Local 416000 v. Ethyl Corp., 644 F.2d 1044

(5th. Cir. 1981) :

Pilot Freight Carriers v. — ee

Cir. 1981)

Railway Employees v. Florida East Coast R. Co., 384

US. 238 (1961)

Republic Steel Corp. v. n e Un @0 (198)

Rochdale Village, Inc. v. Publie Service Employees Un-

ion Local No. 80, 605 F.2d 1290 (2d Cir. 1979

Strauss v. Silver ee e e e

1965)

Teamsters Local Unions v. Braswell Motor Freight

Lines, Inc., 392 F.2d 1, modified, 395 F.2d 655 (9th

Cir. 1968)

Teamsters Local 174 v. Lucas Flour, 369 U.S. 965

ll

15

17

14

1¹

(1962) ..... — 1. 15, 16, 17, 18

12th & L. Ltd. v. Local 99.99 A I. U. O. E., 396 F.Supp.

1174 (D. D.C. 1975)

10

7

Page

United Association Local No. 725 v. Honeywell, Inc.,

607 F.2d 659 (5th Cir. 1979) 10

United Steelworkers v. American Manufacturing Co.,

363 U.S. 564 (1968) 6

United Steelworkers v. Enterprise Wheel & Car Corp.,

363 . 593 (1960) 6

United Steelworkers v. Warrior & Emp. Gulf Naviga-

tion Co., 363 U.S. 574 (1960) 6, 11,12

Western Conference of Teamsters v. Ringsby Truck

Lines, 676 F.2d 383 (9th Cir. 1982) 19

West Texas Utilities Co., Inc. v. N.L.R.B., 206 F.2d

442 (D.C. Cir. 1953), cert. denied, 346 U.S. 855 (1953) 17

Wiley & Sons v. Livingston, 376 U.S. 543 (1964) 10

Wire Service Guild Local 222 v. U. P. I., Inc., 623 F.2d

257 (2nd Cir. 1980) 7

W. R. Grace and Co. v. Rubber Workers, No. 81-1314

(cert. granted June 28, 1982) 19

Statutes

28 U.S. C., Section 1254(1) 2

29 U.S.C.:

Section 158(b) (1) (B) 3

Section 158(b) (3) 3

Section 185 i, 2

45 U.S.C., Section 15 et seq. 17

Sy a A Ao i 3 > a 188 4 0 aia 4 ‘

CE On el eo MR

* ‘ N

a

§

ote

— = ee *

|) ne oa

No.

In the Supreme Court

United States

Ocroser Term, 1982

Broruernoop or Teamsters & Auro Truck Drivers,

Local. 70,

Petitioner,

vs.

Caurrorn1a Truckine Association, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIROUIT

Brotherhood of Teamsters and Auto Truck Drivers Lo-

cal 70 respectfully prays that a Writ of Certiorari issue

to review the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit.

I

OPINIONS AND ORDERS BELOW

The opinion of the Court of Appeals is reported at 679

F.2d 1275 and appears as Appendix A. This opinion af-

firmed in part, and reversed in part, a judgment of the Dis-

trict Court for the Northern District of California which

had entered an opinion, which appears as App. C. The

District Court had previously issued memoranda ruling on

some of the issues involved in this Petition which appear

as Appendixes D, E, F and G, respectively. They are un-

officially reported at 86 LRRM 2683, 88 LRRM 2030, 94

LRRM 2981. The order denying the Petition for Rehear-

ing is Appendix B.

I

JURISDICTION

The opinion of the court was initially filed on October

19, 1981. A timely petition for rehearing was denied on

June 3, 1982, with certain modifications of the court’s opin-

ion. Jurisdictioa of this Court is invoked under 28 U.S.C.

§ 1254(1).

1

STATUTORY PROVISIONS

29 U.S.C. section 185 reads in relevant part:

“Suits for violation of contracts between an employer

and a labor organization representing employees in an

industry affecting commerce as defined in this chapter,

or between any such labor organizations, may be

brought in any district court of the United States hav-

ing jurisdiction of the parties, without respect to the

amount in controversy or without regard to the citi-

zenship of the parties“

Iv

STATEMENT OF THE CASE

This matter involves suit brought by a multi-employer

‘bargaining group, as well as two individual snack food

houses, seeking damages for two separate strikes occurring

. * “ = 7 .. ee

in April and May of 1970. Two separate suits were filed

which were eventually consolidated by the district court.’

In pret:rial orders, the district court dismissed individual

defendants, stayed all proceedings with respect to claims

occurring on or after May 18, 1970, because the employers

had not exhausted the grievance procedure, and denied the

same motion with respect to any claims occurring before

that date. App. D, E, F and G.

The trial of this matter to the court was held on various

days in 1975 and 1976. After post-trial briefs, the district

court entered its memorandum opinion helding the Union

liable for both strikes and assessing damages in excess of

‘three million dollars. A timely motion for new trial was

filed. Although the court denied that motion, the judgment

was amended and certain minor damage claims were de-

leted.

The court of appeals affirmed in large respect the district

court's findings, but reversed and remanded with respect

to certain damage computations.

As we shall show, fundamental questions concerning col-

cert.

Brotherhood of Teamsters, Local 70, 195 N.L.R.B. 454 (1972). See

¥

4

The employers involved are twenty-seven motor carriers

and two snack food manufacturing coinpanies who employ

Teamster drivers. The motor carriers were members of a

multi-employer bargaining unit known as the California

Trucking Association. Through this multi-employer asso-

ciation a nati>ral collective bargaining agreement was ne-

gotiated known as the National Master Freight Agreement

(hereinafter NMFA).“

Teamsters Local 70 represents only local pick-up and

delivery drivers, and its jurisdiction is limited to Alameda

County, California. Each of the employers maintains a

terminal or facility in that county, of which only a portion

of its employees are represented by Local 70. The remain-

der of their employees are represented by other unions.

Local 70, as an affiliate of the International Brotherhood

of Teamsters, is a party to the NMFA. In addition to the

national agreement, there are also local supplemental

agreements which cover local geographical areas. This suit

is concerned with the Joint Council No. 7 Supplement (JC

Supp.).

The 1967-1970 NMFA and its supplements were in effect

for the period April 1, 1967, to March 31, 1970. Pursuant

to Art. 37, Sec. 2, a notice was given in late 1969 that the

Union wished to negotiate revisions in the collective bar-

gaining agreement. Negotiations commenced with the em-

ployers in Washington and continued throughout the

spring of 1970. It is undisputed that there was a failure to

agree upon any revisions until April 2, 1970, when a ten-

*Relevant provisions of the 1967-1970 and 1970-1973 agreements

appear at App. I. : |

be

tative settlement” was agreed upon. That settlement was

eventually ratified and became the 1970-1973 NMF A.

As of midnight, March 31, 1970, there was no agreed-

upon collective bargaining agreement, and Local 70 took

strike action against some of the carriers involved in this

action. That action was eventually extended to other em-

ployers on April 3. The initial work stoppage ceased on

April 7, and all of Local 70’s members returned to work

immediately thereafter. The court below found that Local

70 initiated the strike action at a time when no agreement

was reached and because Local 70 was dissatisfied with

the progress of the negotiations and wished to break away

from the multi-union bargaining group.

The May strike action is somewhat different. In Los

Angeles, several hundred trucking industry employees had

been fired as a result of work stoppages which had oc-

eurred in early April and were engaged in wildcat picket-

ing. Early in May, a number of the wildcat strikers from

Los Angeles came north and began picketing in Local 70’s

area. Local 70 adopted the cause of the wildcat strikers and

began pressuring the trucking employers to negotiate a

separate, agreement with the Union. The court below found

that Local 70’s continued interest in a separate agreement

was a cause of the strike. The strike in May lasted until

late May or, in some cases, into June.

The district court imposed liability on Local 70 for the

five working days of work stoppage in April, as well as the

work stoppages in May through May 17. The court stayed

all proceedings with respect to damage claims occurring

on or after May 18, finding that the 1970-1973 NMFA re-

quired the employers to exhaust the contractual grievance

procedure. The employers have not pursued those damage

claims.

gat

*

e

6

Vv

WHERE THE PARTIES HAVE AGREED TO A BROAD

GRIEVANCE PROCEDURE, UNDER THE PRESUMP-

TION OF ARBITRABILITY OREATED IN THE

STEELWORKERS TRILOGY, ISSUES OF CONTRAC-

TUAL INTERPRETATION WHICH MAY DETER.

MINE THE ARBITRABILITY OF A DISPUTE

SHOULD BE DETERMINED THROUGH THE GRIEV-

ANCE PROCEDURE

When this Court created the presumption of arbitrability

in the Steelworkers Trilogy,’ it was not envisioned that the

same principle would apply to employer claims of a union

violation of a collective bargaining agreement. Subse-

quently, this Court recognized that the same doctrine

should apply where employers lodged claims that the union

had violated the collective bargaining agreement, particu-

larly where an unlawful strike was conducted. Drake Bak-

erties, Inc. v. Local 50, Bakery Workers, 370 U.S. 254

(1962).

Let in determining what matters are subject to arbitra-

tion this Court has stated that the question of arbitrability

is one that is reserved to the court, a statement which has

led to conflicting results in the federal court system. When

declaring that questions of arbitrability are to be decided

by the court,“ this Court has not confronted the problem

United Steelworkers v. American Manufacturing Co., 363 US.

564 (1968); United Steelworkers v. Warrior C Emp. Gulf Naviga-

tion Co., 363 U.S. 574 (1960); and United Steelworkers v. Enter-

prise Wheel & Cur Corp., 363 U.S. 593 (1960).

Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241 (1962);

International Union of Operating Engineers v. Flair Builders, Inc.,

405 US. 487, 491-92 (1972) and John Wiley and Sons, Inc. o.

‘Livingston, 376 U.S. ane {08}.

7

that it often requires an interpretation of the agreement

itself to determine whether a matter is subject to resolu-

tion through the grievance procedure even though the par-

ties have intended to resolve disputes determining arbi-

trability through their grievance procedure. For example,

whether a specific exception to arbitration applies ic a par-

ticular dispute may require arbitration.’ Or whether the

grievance procedure encompasses employer grievances

may also demand the same interpretative procedure.“

From these examples it is apparent that the courts have

applied contradictory methodology to determining arbi-

trability: in some cases interpreting the contract them-

selves or in other cases remanding the question of contract

interpretation for the arbitrator to determine the “arbitra-

bility.” This case presents an important opportunity to

resolve the tension between those methodologies by declaz-

ing firmly that where the question of arbitrability is also

of contractual interpretation that it should be normally

*Johnston-Tombigbee Furniture Manufacturing Co. v. Local

Union No. 2462, Carpenters, 596 F.2d 126, 128-29 (5th Cir. 1979);

CBS, Inc. v. International Photographers, IATSE, 603 F.2d 1061

(2nd Cir. 1979); Wire Service Guild Local 222 b. U. P. I., Inc., 623

F.2d 257 (2nd Cir, 1980); Desert Coca-Cola Bottling Co. v. General

Sales Drivers Local 14, 335 F.2d 198 (9th Cir. 1964); Carpenters

District Council v. Brady Corp., 513 F.2d 1 (10th Cir. 1975); Marble

Products Co. v. Local 155, United Stone Workers, 335 F.2d 468

(Sch Cir. 1964); and contra, Strauss v. Siloercup Bakers, Inc., 353

F.2d 555 (2d Cir, 1965). A

See I. T. T. World Communications, Inc. v. Communication Work-

ers, 422 F. 2d 77 (2nd Cir. 1970); International Association of Bridge

Etc. o. Superior Court, 80 Cal.App.3d 346 (1978); but of. Friedrich

v. Local No. 780, 515 F.2d 225 (Sch Cir. 1975) and G. T. Schjeldahl

Co. v. Local Lodge 1680, 393 F. 2d 502 (Ist Cir. 1008).

decided through the arbitration procedure, contrary to the

ruling of the court below.’

The coufusion created in the federal courts by these con-

tradictory approaches is demonstrated in four different

ways in this case. In each situation, the court imposed its

own interpretation of the agreement in order to determine

that the dispute was not subject to the grievance procedure

where the parties [bly their contract [have] clearly ex-

pressed their preference for an arbitral, rather than a

judicial interpretation of their obligations under the con-

tract.” Nolde Bros., Inc. v. Bakery and Confectionary

Workers, 430 U.S. 248, 253 (1977).

First, we pointed out that the 1970-1973 NMFA explicitly

provided for the resolution of damage claims through the

grievance procedure. The court, in part, accepted that ar-

gument and stayed proceedings with respect to any damage

claims occurring on or after May 18. App. D and E The

court however utilizing parole evidence ruled that any

claims arising before that date were not subject to the

grievance procedure, notwithstanding explicit language

of the 1967-1970 NMFA which provided in Art. 37, Sec. 3

that “Revisions agreed upon or ordered shall be effective

as of April 1, 1970. .” Although we agree that there is

conflicting evidence regarding the complete retroactivity

of the new agreement, the controversy invokes the prob-

lem of interpretation of the agreement as well as the in-

tent of the bargaining parties. As we note in the margin,

We are not dealing with a situation where the court is called

upon to determine the existence of the contract, or the existence of

an arbitration provision, something fully reserved to the court.

Moreover, the grievance procedure is broad enough to encompass

the disputes mentioned before.

the courts of appeals have taken contradictory positions as

to whether arbitrability questions arising out of the ter-

mination and/or retroactivity of an agreement is to be de-

cided by the court or the parties through their grievance

procedure.’ The court adopted the proposition that al-

though the question of retroactivity was one involving the

interpretation of the agreement it was to be accomplished

by the court since it ultimately determined the issue of ar-

bitrability. App. A, note 5, and E, p 3-4. Contrariwise, the

district court held that the Unior could have “submit[ted]

to the grievance procedure the question[] whether or not

the contracts had expired.” App. C p. 34. There is no res-

olution of this inconsistency.

Second, we contended that the employers’ damage claims

were factual disputes which did not involve an interpreta-

tion of the master agreement and, therefore, had to be sub-

mitted to the local grievance procedures contained within

the supplemental agreement. App. C p. 16-19. We did so

because the JC 7 Supp. grievance procedure was far

broader than that of the NMFA procedure and applied to

“any grievance or controversy affecting the mutual rela-

tions of the Employer and the Union as well as avoid-

ing the implication of Art. 8(d) discussed, infra p. 12.

Whether the dispute was “factual” or “interpretative” re-

See Local Union No. 4 0. Radio 1380, Inc., 469 F. ad 610, 614

(8th Cir. 1972); Rochdale Village, Inc. o. Public Service Employees

Union Local No. 80, 605 F.2d 1290, 1296 (2d Cir. 1979); Chatta-

nooga Mailers v. Chattanooga News-Free Press, 524 F.2d 1305,

1315 (ech Cir. 1975); but of. International Union, United Automo-

bile Workers b. J. T. T., 508 F. 2d 1309 (8th Cir. 1975) and Kaufman

& Broad v. International Brotherhood of Firemen, 607 F.2d 1104,

1108-112 (Sch Cir. 1979).

quiring processing of the dispute at different levels of the

grievance procedure, is certainly one of procedure even

though ultimately determining the arbitrability of the

dispute.’

Third, we pointed out that even if the parties had agreed

in Art. 8(d) to permit direct legal action where the “strike”

was in violation of the agreement we co..tended that “In

any event, work stoppages. sick-outs and picketing were

not strikes and, therefore, any claims for damage resulting

from such actions also had to be submitted to the grievance

procedures.” App. A, Note 8. The district court sweepingly

rejected this claim by finding that the word strike was sy-

the arbitrator, Wiley C Sons v. Livingston, 376 U.S. 543 (1964);

Marshall Hale Memorial Hospital v. Hospital & Institutional Work-

ers Union, Local 250, 647 F.2d 38 (9th Cir. 1981), the courts have

taken upon themselevs to determine the question of

arbitrability which arises out of conflicting grievance procedures.

See United Association Local No. 725 v. Honeywell, Inc., 607 F. 2d

659 (5th Cir. 1979) and Local 675, U.A. o. Honeywell, Inc., 652

2d 1301 (9th Cir. 1981). But cf. Kentucky-West Virginia Gas Co.

0. OC. A. W. Local No. 3-510, 549 F.2d 407 (6th Cir. 1977) (clause

1977) and 12th C L. Ltd. e. Local 99-994 1.U.0.E., 306 F. Supp.

1174, 1177 (D.D.C. 1975).

> . 1 1

K n *

1¹

Union, 345 Fad 757 (9th Cir. 1965) .“ Had the district court

found that any part of the activity of Local 70 was not a

“strike” subject to Article 8(d), then it would have stayed

the proceedings arising out of those activities.

Fourth, we argued that there were two provisions in the

NMFA mandating that the National Grievance Committee

would decide the arbitrability of any grievance: Art. 8(g)

and 8(f), App. I. The court rejected the argument on the

theory that the question of arbitrability may only be de-

cided by the grievance committee if the contract makes it

“explicitly” clear that the parties have so agreed. App.

A, Note 5. Although arguably these provisi © included the

arbitrability question, the court reasoned that a reversal

of the norma! presumption in favor of arbitrability is war-

ranted where Local 70 asserted that those questions should

be resolved in the grievance procedure. It is not hard to

locate the eource of confusion as to the appropriate stand-

ard to be applied. In dicta, this Court suggested that it re-

quires a “clear demonstration” of an intent by contracting

parties to permit the question of arbitrability to be decided

by the arbitrator. United Steelworkers v. Warrior d Gulf

Navigation Co., swpra, at n.7. Yet, since then the courts

have recognized that the parties may agree to remand ques-

tions of arbitrability to their grievance procedure without

applying that burden.“ The standard adopted by the court

"See cases cited at footnote 5, supra.

See Amalgamated Clothing and Textile Workers Union v. Rat-

ner Corp., 602 F.2d 1363, 1366, 1370 (9th Cir. 1979); Teamsters

Local Unions o. Braswell Motor Freight Lines, Inc., 392 F. ad 1,

6, n.6, modified, 395 F.2d 655 (9th Cir. 1968); but cf. Metal Product

Workers Union 1645 0. Torrington Company, 358 F.2d 103, 105

(2d Cir. 1966).

ERT PF

below is an express reversal of the normal burden in which

the party resisting arbitration must convince the court that

“it may be said with positive assurance that the arbitration

clause is not susceptible of an interpretation which covers

the asserted dispute.” Id. at 582-83.

Each of the issues was raised in the district court and

then to the court of appeals. In each case, the courts inter-

preted the contract and rejected petitioner’s requests that

the matter be treated through the parties’ grievance proce-

dure.

As we have shown above, the Steelworkers Trilogy ana

subsequent cases have left unresolved the question of

whether a court, or the arbitrator, should determine the

arbitrability of a grievance where that question is decidedly

one of interpretation of the provision in the labor agree-

ment. It is time that that issue be resolved consistent with

the presumption of arbitrability so as to require such

questions to be normally decided by the arbitrator and not

the court.

Vl

IF EXHAUSTION OF CONTRACTUAL RDS IS

JURISDICTIONAL TO A CLAIM ALLEGING A

VIOLATION OF A COLLECTIVE

AGREEMENT, THEN THE UNION’S

REGARDING THE INTERPRETATION OF ARTICLE

8(d) COULD BE RAISED ON APPEAL

We made one argument that the court below rejected

because of Local 70’s litigation posture. After determin-

ing that the 1967-70 NMFA governed during the period up

to May 17, 1970, it read one sentence in Art. 8(d) to per-

mit employer damage claims to proceed : “Nothing herein

' A

shall prevent legal proceedings by the Employer where

the strike is in violation of this Agreement.” The Ninth

Cireuit agreed with our contention that normally the in-

terpretation of that sentence is one in which the usual

“presumption of arbitrability would require the district

court to defer to the arbitrator for an interpretation of the

words ‘strike’ and ‘in violation of this Agreement’.” App. A

note 10.

The court rejected our argument because Local 70 had

alleged “that it was not bound by the 1967-1970 collec-

tive bargaining agreement” (App. A p. 28) and, therefore,

“repudiated” its obligations before the court. The court

was dead wrong. The Union’s position was that, although

bound by that agreement through March 31, 1970, the

Union was not bound by the new agreement effective there-

after. That was what the strike was all about, as well as

the collateral litigation before the NLRB.” The district

court was never confused in this regard. App. C pp. 28-29.

Nor did the district court think the Union had waited too

long to raise this defense: “(The court] does note that the

delay in this case is not likely to disrupt the proceedings

to the degree that would, in the court’s opinion, justify

denial of arbitration on that ground alone.” App. D p. 33.

Nor was the trial judge unaware of Local 70’s position that

the meaning of Article 8(d) was reserved for the Grievance

Committee for he stated, seemingly exasperated with our

repetitive motions :

“On January 25, 1974, it held that arbitration was not

required by the 1967-70 Master Agreement because

Article 8(d) of that Agreement specifically permitted

suits where strikes were involved. On March 22, 1974,

“See n. I. supra.

on . N 1 4 * . ie

. E r ee ee ee el r

14

the court refused to certify this issue for immediate

appeal under 28 U.S.C. section 1292(b) . . Defendant

now seeks essentially to reverse that ruling, relying on

the presumption of arbitrability and claiming that

damage claims arguably not within the exception to

that grievance exhaustion requirement contained in

Article 8(d) and that the question of whether they are

within that exception should be arbitrated.” App. G

pp. 1-3 (Emphasis supplied).

Assuming even some merit to the court of appeals’ view

of the record, would Local 70 have been able to raise the

issue at any time in light of the settled doctrine that any

jurisdictional issue may be raised at any time during the

litigation, either by a party, or by the court. King Bridge

Co. v. Otoe County, 120 U.S. 225 (1897)? In Republic Steel

Corp. v. Maddow, 379 U.S. 650 (1965), and Andrews v.

Louisville & Nashville RR, 406 U.S. 320 (1972), this Court

has made it clear that an individual worker must exhaust

the contractual remedy, otherwise dismissal is mandated.

Similarly, where a union fails to exhaust a contractual

grievance procedure, a court lacks jurisdiction. California

State Council v. Associated General Contractors, 648 F. ad

527, 539 (9th Cir. 1980) cert. granted on other issues, _......

U.S. ........ (1981). On the other hand, with respect to em-

ployers’ claims against unions, confusion governs in the

courts as to the proper disposition.”

If our theory is correct that the exhaustion of contrac-

ment is jurisdictional to a claim in the district court on

the same theory, then there is no difference when the issue

is raised. This Court is compelled to resolve the question

of whether exhaustion of contractual remedies by an em-

ployer is jurisdictional or not, so as to require employer

grievances to be treated identically with union grievances.

vn

WHERE THERE IS NO PROVISION FOR FINAL AND

BINDING ARBITRATION, THERE IS NO IMPLIED

NO-STRIKE OBLIGATION

In Teamsters Local 174 u. Lucas Flour Co., 369 U.8. 965

(1962), this court neld that where a collective bargaining

agreement provides for final and binding arbitration, any

grievance encompassed by that arbitration clause may not

be the subject of strike action.

The grievance procedures contained in the NMFA and

the JC 7 Supp. specifically prohibit arbitration of any dis-

pute, for the grievance procedure is composed of a series

of multi-level joint committees composed equally of em-

ployer and union representatives. There is no necessary

finality to any grievance processed through that procedure.

This is a grievance procedure for resolution of disputes as

distinguished from arbitration because of its lack of finality.

NLRB v. C. & C. Plywood Corp., 385 U.S. 421, 429 (1967)

and Hoover Motor Express Co. v. Teamsters Local 327,

217 F. ad 49, 53 (6th Cir. 1954).”

When this Court enunciated the Lucas Flour doctrine it

did not determine that the existence of a grievance pro-

eln another context, the lack of finality is a decisive factor, A

ciated General Contractors of Illinois o. mne,

(7th Cir. 1973). :

cedure absent such finality invoked the same implied no-

strike obligation. Indeed, this Court subsequently recog-

nized that that issue has been left open. See Chauffers,

Teamsters and Helpers Local Union No. 795 v. Yellow

Transit Freight Lines, 370 U.S. 711 (1962). The court

below avoided this precise question by generalizing that

any grievance procedure is “arbitration” without reaching

the question of whether a necessary part of arbitration is

finality." App. A. p. 36-38.

We submit that this is an appropriate case in which to

resolve that important issue because of the large number

of collective bargaining agreements which preclude binding

arbitration and rely on the joint committee system.

VIII

WHERE A UNION STRIKES OVER THE TERMS AND

CONDITIONS OF EMPLOYMENT, DOES AN IX.

PLIED NO-STRIKE OBLIGATION EXIST WHERY

THE MATTER IS NOT RESOLVABLE THROUGH

THE GRIEVANCE PROCEDURE

As we have noted above, there is a substantial question

as to whether the Lucas Flour doctrine is applicable be-

cause the contract lacks a provision for “final and binding

arbitration”. 369 U.S. at 106. As we shall show in this

portion of our petition, the second prong of the Lucas

Flour doctrine is lacking: whether tue strike was under-

taken over an issue which “it has been agreed will be cov-

ered by compulsory terminal arbitration.” Id at 106.

. r

9

17

The court below recognized that the cause of the strike

was local 70’s dissatisfaction with the course of bargaining

and resulted in local 70’s efforts to break away from the

multi-employer bargaining group.

This Court cautioned in Lucas Flour that the doctrine

does not “suggest [that] a no-strike agreement is to be

implied beyond the area which it has been agreed will be

covered by exclusive compulsory terminal arbitration.”

Id. See also Buffalo Forge Co. v. United Steel Workers,

428 U.S. 397 (1976).

It takes no extensive discussion to demonstrate that a

union’s efforts to force an employer to agree to different

terms and conditions of employment is decidedly not a

grievable matter but one which may be resolved only

through negotiations. West Texas Utilities Co., Inc. v.

N.L.R.B., 206 F. 2d 442, 446 (D.C. Cir. 1953), cert. denied,

346 U.S. 855 (1953)."" The court read far more into the

grievance procedure than is proper when it stated “It is

doubtful that under the language of the agreements there

was any room for stoppage in the absence of prior arbi-

tration.” App. A. p. 36. We believe that the implications

of the court’s holding are preposterous. Nothing would sug-

gest that the Union could grieve its claim for higher wages

and different benefits. Moreover, it clashes with the doc-

trine that “[w]here there has been no express waiver of

the right to strike, a waiver of the right. . is not to be

inferred.” NLRB v. Lion Oil Co., 352 U.S. 282, 293 (1957).

This precise distinction exists under the Railway Labor Act,

45 U.S.C. § 15 et seq. See Elgin, Joliet & Eastern R. Co. o. Burley,

325 U.S. 711, 722-23 (1945) and Railway Employees v. Florida East

Coast R. Co., 384 U.S. 238-40 (1961). 2

In light of the doctrine that courts are not to regulate

the permissible free play of economic force, it was im-

proper to imply a no-strike obligation beyond those dis-

putes which are resolvable through a grievance procedure.

This is a compelling opportunity to clarify the Lucas Flour

doctrine.”

THE COURT COULD NOT IGNORE THE INTERPRE-

TATION OF A CONTRACT SETTLED THROUGH A

FINAL DECISION OF THE NATIONAL GRIEVANCE

COMMITTEE

The first two days of the strike in April were conducted

before the national bargaining committees settled on a new

agreement. In order to find any no-strike pledge, the court

read Art. 37, sec. 3, to infer a no-strike obligation until im-

passe in negotiations occurs. The provision states “The re-

spective parties shall be permitted all legal or economic

recourse to support their requests for revisions if the par-

ties fail to agree thereon.” Since the bargaining continued

on those two days without impasse, the court held that no

strike could be conducted.

We contended that the phrase had the contrary meaning.

Strike or lockout was permitted until a new agreement was

reached. The court’s equating “failure to agree” with “im-

The ruling of the Ninth Circuit is in conflict with four other

courts: Emery Air Freight Corp. v. Local Union 295, 449 F.2d 586,

591 (2d Cir. 1971), cert denied, 405 U.S. 1066 (1972); Automobile

Transport, Inc. v. Ferdnance, 420 F. Supp. 75, 77 (E.D. Mich. 1976);

Coordinating Committee v. United Steelworkers, 436 F Supp. 208,

215 (W.D. Pa 1977); and Best Cranes, Inc. v. Local 139 1.U.0.E.,

93 LRRM 2994 (E.D. Wisc. 1976). See also Iodice v. Calabrese,

512 F.2d 383, 389 (2d Cir. 1975).

passe” violated three settled principles: (1) It implied a

no-strike pledge where none existed; (2) It interfered with

the parties’ ability to resolve bargaining position through

forces of economic contention; and (3) misread the mean-

ing of “impasse”, which is decidedly different from a fail-

ure to agree.

More compelling is that the parties have in a National

Grievance Committee decision construed precisely this pro-

vision to permit economic action without impasse. See App.

H. Although we think the clearly erroneous analysis of the

phrase is so detrimental to settled principles of labor law

that a hearing should be granted on that ground alone, an-

other important point needs clarification. It is a point that

is involved in a case presently pending before this court:

. R. Grace and Co. v. Rubber Workers, No. 81-1314 (cert

granted June 28, 1982). The question is whether a court

may totally disregard the parties’ definitive understanding

of a contract as expressed in a joint grievance committee

decision.”

See also OCAW, Local 4-16000 b. Ethyl Corp., 644 F.2d 1044

(Sch Cir. 1981).

That award was enforced by the United States District Court

for the Northern District of California in an unpublished decision

in case Nos. C-76-661 and C-77-2626-RHS. See also Western Con-

ference of Teamsters o. Ringsby Truck Lines, 676 F.2d 383 (9th

Cir. 1982).

3

AE

|

25 N

THE UNION’S NO-STRIKE PLEDGE KUNS ONLY TO

TTS MEMBERS IN UNITS COVERED BY ITS COL-

LECTIVE BARGAINING AGREEMENT

A significant portion of the damages in this case were

assessed because of picketing by Local 70 outside of its

contractual jurisdiction (primarily in San Francisco) and

at manufacturing facilities where employees outside of

Local 70’s bargaining unit respected the picket lines. As

to those employees, the picketing was clearly sympathy or

stranger picketing, Buffalo Forge Co. v. United Steelwork-

ers, supra; since there was no contractual obligation on the

part of Local 70 not to cause work stoppages.

Since Buffalo Forge, the courts have inconsistently

treated sympathy strikes once damage issues arise. “Dam-

ge Remedies for Sympathy Strikes After Buffalo Forge,”

78 Colum.L.R. 1664 (1978). Here the issue is squarely

posed.” Absent a “clear and unmistakable” contractual

waiver of a union’s right to cause work stoppages outside

of its jurisdiction, the Union’s actions in picketing other

facilities cannot cause liability under section 185. NLRB v.

Southern California Edison, 646 F.2d 1352, 1365-66 (9th

Cir. 1981); Delaware Coca-Cola Bottling Co. v. General

Teamster Local 326, 624 F. 2d 1182, 1184 (2d Cir. 1980). In

Eazor Express, Inc. v. IB. T., 520 F.2d 951, 956 (3d Cir.

1975), cert. denied, 424 U.S. 935 (1976), the court recog-

A

* 3

*

This Court is left with a precise egal issue: Absent a

“clear and unmistakable waiver” of a union’s right to picket

outside of its collective bargaining unit by engaging in

stranger picketing, can contractual damages be assessed?

CONCLUSION

This case presents a myriad of important labor law

issues. Had the district court followed the Union’s repeated

requests that this matter be stayed or dismissed while the

employers’ claims proceeded through the grievance pro-

cedure, neither the district court nor the court of appeals

would have become entangeled in interpreting these com-

plicated collective bargaining agreements.

For the reasons suggested above, this Court should grant

this petition and set this case for oral argument.

Dated: August 30, 1982

Respectfully submitted,

Davm A. Rosenre.p

COUNSEL OF RECORD

Victor J. Van» Bourse

Van Bourne, ALLEN, WenrBERG

& Rocer

Attorneys for Petitioners

“alg