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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1983
- **Citation:** 459 U.S. 1128

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1130%3A3. Public record. Not legal advice.