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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1982
- **Citation:** 459 U.S. 970

## Text

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

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— = 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0705%3A1. Public record. Not legal advice.