Opposition — International Brotherhood of Teamsters v. Great Coastal Express, Inc.

Oifice «Supreme Court, W.S.

‘'~PILED

No. 82-787 | DECLO 162

STEVAS,

IN THE CLERK

Supreme Court of the United States

OCTOBER TERM, 1982

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,

‘ Petitioner,

GREAT COASTAL EXPRESS, INC.,

Respondent.

On Petition For a Writ of Certiorari

To The United States Court of Appeals

For The Fourth Circuit

BRIEF FOR RESPONDENT

IN OPPOSITION TO PETITION

J. W. ALEXANDER, JR.

3450 NCNB Plaza

Charlotte, North Carolina 28280

(704) 372-3680

Counsel of Record

Of Counsel:

WHITEFORD S. BLAKENEY

Blakeney, Alexander & Machen

Charlotte, North Carolina

JAMES M. MINOR, JR.

Minor, Marshall, Forb & Batzli

Richmond, Virginia

TABLE OF CONTENTS

Page No.

The Background Of The

Union's Effort To Nullify

A Money Judgment Rendered

Against It And Paid By it

Years - l

The Evidence Upon Which

The Union Seeks To Nullify

The Judgment - 6

The Evidence Upon Which

The Union Seeks To Rely

Cannot Constitute A Basis

For Nullifying The Judgment

Rendered Against The Union - 16

The Union's Effort To

Nullify The Judgment

Is Also Barred By The

Time Limit Prescribed

In The Federal Rules

Of Civil Procedure - 25

TABLE OF AUTHORITIES

Page No.

Cases:

Great Coastal Express,

Inc. v. International

Brotherhood of

Teamsters, 511 F.2d 839

(4th Cir. 1975) - 2,3,4,20

Great Coastal Express,

Inc. v. International

Brotherhood of

Teamsters, 675 F.2d 1349 2,3,4,13,

(4th Cir. 1982) - 21,24, 26,

28,29

International Brotherhood

of Teamsters v. Great

Coastal Express, Inc.,

425 U.S. 975, 96 S.Ct.

2176, 48 L.Ed.2d 799

(1976) - 4

Toledo Scale Company

v. Computing Scale

ny, 261 U.S. 399,

43 S.Ct. 458, 67 L.Ed.

719 (1922) - 25

Rules of Court:

Federal Rules of Civil

Procedure, Rule 60(b) - 25,28

ii.

No. 82-787

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA,

Petitioner,

Vv.

GREAT COASTAL EXPRESS, INC.,

Respondent.

On Petition For a Writ of

Certiorari to the United States Court

Of Appeals for the Fourth Circuit

BRIEF FOR RESPONDENT

IN OPPOSITION TO PETITION

The Background Of The Union's

Effort To Nullify A Money

Judgment Rendered Against It

And Paid By It Years Ago

This case arose out of a strike

2.

by the Union?, against the Company“, which

occurred twelve years ago”. Upon

instituting suit, the Company alleged

two separate and distinct causes of action

against the Union - as the Court of Appeals

has repeatedly stressed in its successive

decisions in this case - namely:

"(1) damage to property and equipment

caused by the Union violence; and (2) lost

business caused by illegal secondary

boycotting” on the part of the Union’.

lyow the Petitioner.

2Now the Respondent.

3Great Coastal Express, Inc. v.

International Brotherhood of Teamsters,

675 F.2d 1349, 1351 (4th Cir. 1982).

“Great Coastal Express, Inc. v.

International Brotherhood of Teamsters,

675 F.2d 1349, 1351 (4th Cir. 1982) and

Great Coastal Express, Inc. v. International

Brotherhood of Teamsters, 511 F.2d 839, 841

(4th Cir. 1975).

3.

With regard to the first cause

of actior, the Court of Appeals has

likewise emphasized in each of its

decisions that the "claim" as to “union

violence" was "eliminated from the case

by directed verdict at the close of Great

Coastal's case in chief"? in the District

Court.

A verdict against the Union, as

to liability and damages, was then

rendered bythe trial jury upon the cause

of action for illegal secondary boycotting’.

That verdict was thereafter set aside by

the trial court as to the amount of

loreat Coastal Express, Inc. v.

International Brotherhood of Teamsters,

675 F.2d 1349, 1351 (4th Cir. 1982) and

Great Coastal Express, Inc. v.

International Brotherhood of Teamsters,

511 F.2d 839, 841 (4th Cir. 1975).

2 den.

4.

damages awarded by the jury, and the issue

of damages was later tried before a new

jury. The verdict of the second jury as

to damages was accepted by the District

Court, and judgment was thereupon

rendered against the Union upon the cause

of action for unlawful secondary boycotting.

That judgment “was affirmed as to both

liability and damages” by the Court of

1 and this Court thereafter denied

Appeals

certiorari“.

Some two and a half years after

the Union had paid this judgment, it filed

loreat Coastal Express, Inc. v.

International Brotherhood of Teamsters,

675 F.2d 1349, 1351 (4th Cir. 1982) and

Great Coastal Express, Inc. v.

International Brotherhood of Teamsters,

511 F.2d 839, 847-848 (4th Cir. 1975).

2International Brotherhood of

Teamsters v. Great Coastal Express, Inc.,

425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d

799 (1976).

5.

a Motion in the District Court seeking to

reopen the case and vacate the judgment

and recoup the payment which it had made

thereunder - the ground of such Motion

being that the Union had learned that

certain of the evidence put forward against

it at the original District Court trial

had been false.

At a supplemental hearing on

this Motion before the District Judge,

without a jury, it developed that the

trial evidence which the Uni.on showed to

have been false was a part of the evidence

on the cause of action for violent damage

to the Company's property and equipment -

which cause of action, as hereinabove noted,

had been wholly dismissed and eliminated

from the case at trial, and on which neither

a verdict nor a judgment had been rendered

against the Union.

Yet, with regard to illegal

secondary boycotting - the only subject

or cause of action as to which verdict

and judgment had been rendered against

the Union - the Union did not show, and

has never shown or purported to show,

any falsity of evidence whatsoever.

The Respondent will hereinafter

return to this basic fallacy in the

Union's effort to vacate the second

boycott judgment, but it may be that the

Court, at this point, would wish to have

a delineation as to just what the

supplemental hearing on the Union's

Motion did show with regard to false

evidence.

The Evidence Upon Which The Union

Seeks Tc Nullify The Judgment

On the cause of action for

Fe

violent damage to the Company's property

and equipment during the strike, the trial

evidence had depicted some twenty episodes

or groupings of such violence. Out of all

this evidence of damage by violence, the

supplemental hearing on the Union's Motion

showed only one instance of falsity in the

trial evidence. This became referred to

as the New Kent incident.

At the eupplemental hearing,

Robert Seward, a former truck driver for

the Company, testified that one day during

the strike, after a conversation with a

Company supervisor, William Funai, he drove

his truck out on a country road and got

out and threw a brick against the

windshield of the truck and dented the

metal siding of the truck trailer with

three shots from a 22 caliber handgun.

Seward stated that he then drove

his truck to a nearby restaurant and called

the Company Manager, Edward Flinn, and

"told him a lie" about unidentified persons

having damaged his truck, and later made

a written statement to the same effect at

the Company office’. There was no

evidence that Flinn had any inkling what-

ever that this incident had been concocted

by Seward and Funai, or by either of them.

Instead, Seward himself testified thar

Flinn knew "nothing about" any such’.

Funai, who held the title of

"Dispatcher or Terminal Manager" and also

drove trucks, testified upon deposition,

1

Joint Appdx., upon the Union's

second appeal to the Court of Appeals,

pp. 533, 579.

2 iden, p. 574.

S.

which was embodied in the record of the

supplemental hearing, that nobody in the

management of the Company ever told him

"to have any employee damage any" of the

"Company's equiguent”’ . Although Funai,

at the supplemental hearing, declined to

answer various questions on the matter,

upon the ground that his answer might

tend to incriminate him, he further

testified specifically that he never told

“any one" in the management that he "had

advised any employee to sabotage any

equipment" or that any employee "had

sabotaged" any equipment?.

At the original trial, in

1

Joint Appdx., upon the Union's

second appeal to the Court of Appeals,

pp. 338, 341.

2Tdem, pp. 645-646.

10.

enumerating incidents of violence from a

list thereof, and having had no intimation

of anything suspicious about this

particular incident, the Company's

attorneys had asked Seward the following

routine questions about it and had received

the following casual answers:

"Q. All right, now, in New

Kent County in October, 1970, did

you have an incident in which one

of your trucks was damaged that

you were criving?

A. I don't remember the

county to be exact. I was enroute

to West Point to pick up a load

of paper. This is when I was

alone.

Q. What happened?

A. Well, a brick came inside

ll.

the truck on the passenger side

and some dents was in front of the

trailer, but the State Police

described it as bullet dents".

Likewise, in the Company's brief

to the Court below, upon the Company's

alternative appeal from the trial Court's

dismissal of all violence claims, there is

to be found, in the description of the

evidence relating to violence, only a

single ref srence to the New Kent incident

as follows:

"On one occasion a brick was

thrown at passenger side of the

windshield" of "Robert Seward's

a2

truck" .

lyoint Appdx., upon the Union's

second appeal to the Court of Appeals,

pp. 116-117.

2company's Brief upon the original

appeal to the Court of Appeals, p. ll.

12.

In the Petition's statement of

"Questions Presented" caustic reference is

made to the Company's “sealing the silence

of the perpetrators" of the false evidence

against the Union "through payoffs"!. In

the body of the Petition, this is amplified

by references to Seward as the “employee

responsible for the Company-inspired

violence" and to the Company's paying

"$12,000.00 to Funai", "one of its managers

who had ordered" the New Kent "violence.

Yet the only evidence is that nobody in

the Company's management or supervision

knew anything about the fabrication of the

New Kent incident, other than the non-

supervisory employee Seward and the

supervisor Funai.

petition, b “S's

Petition, p. 9.

13.

The Court below, in commenting

on the $12,000.00 payment to Funai,

observed that:

"This payment was ostensibly

part of the Company's profit-

sharing plan; however, Funai

was not employed by the Company

at the time of the recovery of

the IBT judgment, and therefore

payment of this share to Funai

was contrary to Company policy

regarding profit-sharing".

As to this, the Company

respectfully calls attention to the

following circumstances which are of record.

The Company's written profit-sharing

commitment to its supervisory employees,

1

G r Inc.

International Brotherhood of Teamsters,

675 F.2d 1349, 1353 (4th Cir. 1982).

14.

entered into long prior to any of the

matters involved in this case, required

the $12,000.00 payment which was made to

Funai, regardless of the fact that he was

not employed by the Company when he received

it, and such payment was therefore not

“contrary to Company policy regarding

profit-sharing” but was in accord therewith.

Moreover, it is to be noted that

Funai received no special treatment in

this regard, for Edward Flinn, the Company

Manager, as to whom there has never been

any claim of improper action or conduct

against the Union, received the same profit-

sharing at the same time as Funai - though

he, like Funai, did not remain in the

Company's employment throughout the

duration of the strike.

Such is the evidence pertaining

15.

to the New Kent incident. In calling for

the undoing of the years of judicial process

in this case - and the reversal of verdicts

twice rendered, and decisions twice

arrived at, and judgments twice entered

in the District Court, and twice affirmed

in the Court of Appeals - the Union

presents this incident as the one and

only instance of falsity in the evidence

on the cause of action for violent damage

by the Union to the Company's property.

As has been hereinabove stressed,

however, with regard to the Company's cause

of action for illegal secondary boycotting -

the only cause of action upon which judgment

was rendered - the Union has not at any time

made any showing, nor indeed made any clain,

of any false evidence whatsoever.

16.

The Evidence Upon Which The

Union Seeks To Rely Cannot

Constitute A Basis For

Nullifying The Judgment

Rendered Against The Union

It is submitted that the Union's

effort to vacate the judgment in this case

defies simple reasoning and common sense.

Thus: -

(a) The Union was sued on

two distinct and different causes

of action, namely, (1) violent

damage to the Company's property

and (2) illegal secondary boycotting.

(b) The cause of action

against the Union for violent

damage was dismissed and eliminated

from the case by the trial court

for failure to "tie to" the

International Union.

(c) Judgment was rendered

17.

against the Union on the cause

of action for illegal secondary

boycotting.

(d) Later it was determined

that certain of the evidence

against the Union, on the

previously dismissed cause of

action for violence, was false.

(e) There is no showing

or claim that any of the

evidence on the cause of

action for illegal secondary

boycotting was false or

defective in any sense.

Conclusion (according to

the Union):

By reason of "d", the

judgment for illegal secondary

boycotting must be vacated.

18.

It is submitted that this can

hardly be deemed logical or sensible. For

two reasons, the false evidence on violence

cannot have invalidating effect upon the

secondary boycott judgment: (1) Such false

evidence on the violence cause of action

had no relation to the secondary boycott

cause of action; (2) Such false evidence,

along with all other evidence on violence,

was wholly dismissed, and removed from all

consideration in the case, prior to the

rendering of any verdict or judgment.

It is further important to note

that the judgment on secondary boycotting -

the only judgment rendered and the only

judgment under attack - was fully

supported by the evidence pertaining to

such boycotting. This judgment fully

19,

stands without any aid or support from

any false evidence on violence or any

evidence at all on violence, whether false

or true. This is undeniable in this case,

and the Court of Appeals has repeatedly

stressed it.

"We should say here, and we

emphasize, that the Union does not

contest the fact that there was

evidence from which a jury could

find an illegal secondary boycott.

Indeed, the matter is admitted to

be clearly a jury question.

"From the testimony and other

evidence recited, it goes without

saying that the jury had abundant

evidence to find that IBT had

induced, encouraged, threatened,

or coerced employees of Great

20.

Coastal's customers to withhold

their labor from their employers,

with whom they had no dispute, and

that IBT so acted for the purpose

of achieving the unlawful objectives

set out in the National Labor

Relations Act, §8(b)(4), 29 U.S.C.

§158(b) (4)."

Great Coastal Express,

Inc. v. International

Brotherhood of Teamsters,

511 F.2d 839, 842, 844

(4th Cir. 1975)

Reiterating this, in its second

decision, the Court of Appeals pointed out

that:

” . [T]he [prior] opinion

of the court observed that ‘the

union does not contest the fact

that there was evidence from which

a jury could find an illegal

secondary boycott’ .. . and

21.

further, ‘it goes without saying

that the jury had abundant

evidence’ to find that IBT had

committed unlawful secondary

boycotting.

"We have already observed,

in the prior decision of this

court quoted above, that there

was abundant evidence of damage

caused by the secondary boycotting

alone."

Great Coastal Express,

Inc. v. International

Brotherhood of Teamsters,

675 F.2d 1349, 1352,

1357, ft. no. 3

(4th Cir. 1982)

Yet the Union does not hesitate

to declare in its Petition to this Court

that this secondary boycott judgment is

"a fraudulently obtained" fudguent’.

1

Petition, p. 3.

22.

How can the Union now unequivocally assert

to this Court that this secondary boycott

judgment was "fraudulently obtained", when

the Court of Appeals, in two successive

decisions, has itself unequivocally ruled

with regard to this identical secondary

boycott judgment that - "the jury had

abundant evidence to find that IBT had

induced, encouraged, threatened, or

coerced employees of Great Coastal's

customers to withhold their iabor from

their employers, with whom they had no

dispute, and that IBT so acted for the

purpose of achieving the unlawful

objectives set out in the National Labor

Relations Act" - and that "there was

abundant evidence of damage caused by

secondary boycotting alone” - and that

"the Union does not contest" this fact"?

23.

The Court of Appeals further

emphasizes this fundamental aspect of the

matter by pointing out that “the particular

element that is lacking in this case is a

good defense to the action" for secondary

boycotting, which "the IBT was prevented

from discovering or asserting because of"

the false evidence shown with respeci to

the cause of action for violence - and

that “both parties recognize that the

judgment under attack here is the

secondary boycott judgment." The Court

goes on to say that "the Union has not

proferred any defense to liability" which

the false evidence on the violence cause

of action "precluded" the Union "from

asserting" - and the Court concludes

that "relief was properly denied on this

24.

ground as wel"?

Thus, the Court of Appeals

specifically confirms the Company's

contention that falsity in certain

evidence against the Union in the

violence cause of action is no ground

for nullifying the secondary boycott

judgment, because the Union did not show

that such false evidence precluded the

Union from presenting defense which it

otherwise could and would have presented

against the secondary boycott cause of

action.

This Court itself has so ruled:

"[I]n any cause, to justify

setting aside a decree for fraud,

whether extrinsic or intrinsic, it

loreat Coastal Express, Inc. v.

International Brotherhood of Teamsters

675 F.2d 1349, 1358 (4th Cir. 1982).

25.

must appear that the fraud

charged really prevented the

party complaining from making

a full and fair defense. If it

does not so appear, then proof

of the ultimate fact, to wit,

that the decree was obtained

by fraud, fails. That is the

case here."

Toledo Scale Company

v. Computing Scale

Company, 261 U.S. 399,

421, 43 S.Ct. 458,

67 L.Ed. 719, 728

(1922)

The Union's Effort To

Nullify The Judgment

Is Also Barred By The

Time Limit Prescribed

In The Federal Rules

Of Civil Procedure

Rule 60(b) of the Federal Rules

of Civil Procedure provides that a motion

to vacate a "final judgment" on account of

26.

"fraud" must be made “not more than one

year after the judgment .. . was entered".

The Union did not file any such motion

within this prescribed time limitation.

The same Rule contains a

provision that it imposes no time limit

upon a motion "to set aside a judgment for

fraud upon the court". The Union contends

that it escapes the one year time bar of

Rule 60(b), because it is indeed here

seeking to vacate the judgment "for fraud

upon the court". Both the District Court

and the Court of Appeals ruled that there

has not been any showing of "fraud upon

the court” in this case’.

Obviously, it is a premise of

Rule 60(b) itself that not all fraud

loreat Coastal Express, Inc. v.

International Brotherhood of Teamsters,

675 F.2d 1349, 1355-1358 (4th Cir. 1982).

27.

occurring in the course of a litigation

is "fraud upon the court", otherwise the

distinction made in the Rule would be

meaningless. The Court of Appeals, in its

latest decision in this case, thoroughly

examined and discussed this question and

the authorities bearing upon it, and

concluded thet

"Thus, ‘fraud on the court’

is typically confined to the

most egregious cases, such a

bribery of a judge or juror, or

improper influence exerted on

the court by an attorney, in

which the integrity of the court

and its ability to function

impartially is directly impinged”.

"In this light we cannot

say that the fraud in this case

presents a deliberate scheme to

28.

directly subvert the judicial

process, sufficient to constitute

fraud on the court".

[CJourts confronting

the issue have consistently held

that perjury or fabricated

evidence are not grounds for

relief as ‘fraud on the court'".

Great Coastal Express,

Inc. v. International

Brotherhood of Teamsters,

675 F.2d 1349, 1356,

1357 (4th Cir. 1982), and

authorities there cited

The Court of Appeals also

considered the question of an independent

action in equity, referred to in Rule

60(b) and likewise discussed in the

Petition, and "for many of the same

reasons that apply to fraud on the court"

ruled against accepting a showing simply

of “perjury and false testimony" as being

29.

"grounds for relief in an independent

action"?

The Union's Petition discusses

at length the intricacies of the decisions,

in the courts of appeals and in this Court,

which have struggled with distinctions

and gradations between "fraud" and “fraud

upon the court", and between "intrinsic"

and “extrinsic” fraud - and declares them

to be thoroughly confusing.

There is no occasion in this

case, however, for the Court to wade through

that quagmire. Even if the false evidence

in the case were denominated "fraud upon

the court" - which the District Court and

the Court of Appeals have held it was

not - still it cannot be ground for

lgreat Coastal Express, Inc. v.

International Brotherhood of Teamsters,

675 F.2d 1349, 1357-1358 (4th Cir. 1982),

and authorities there cited.

30.

vacating the judgment here, because - as

has been hereinabove clearly demonstrated -

such false evidence related to a cause of

action for violence which was eliminated

from the case, but was in no way pertinent

to the secondary boycott cause of action

upon which judgment was rendered.

It is respectfully submitted that

in the end it should not be overlooked that

this judgment, which the Union is seeking

to nullify, does represent compensation

for injury caused by deliberate violations

of Federal law which have been undeniably

proved upon "abundant" and unchallenged

evidence.

Upon all of the foregoing, the

Respondent respectfully submits that the

31.

Petition for Writ of Certiorari should be

denied.

J. W. Alexander, Jr.

3450 NCNB Plaza

Charlotte, North Carolina 28280

Counsel of Record

Of Counsel:

Whiteford S. Blakeney

Blakeney, Alexander & Machen

Charlotte, North Carolina

James M. Minor

Minor, Marshall, Forb & Batzli

Richmond, Virginia

Statement Pursuant To

The Court's Rule 28.1

The Respondent, Great Coastal

Express, Inc., has no parent, subsidiary

or affiliate companies.