Reply Brief — Public Service Co. v. Thompson

is) FIL

No. 90-1173 NOV 8

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Lee RL RL CLERK

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

PUBLIC SERVICE COMPANY OF COLORADO

and R. M. RICHARDS,

i. Petitioners,

WILLARD A. THOMPSON,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Colorado

REPLY TO THE BRIEF FOR THE

UNITED STATES AS AMICUS CURIAE

DAVID W. KERBER *

KEVIN W. HECHT

KELLY, STANSFIELD & O’DONNELL

550 15th Street, Suite 900

Denver, Colorado 80202

(303) 825-3534

JAMES R. MCCOTTER

General Counsel

PUBLIC SERVICE COMPANY OF

COLORADO

550 15th Street, Suite 890

Denver, Colorado 80202

(303) 571-7161

Attorneys for Petitioners,

Public Service Company of

* Counsel of Record Colorado and R. M. Richards

SS a I REE AE I OTTERS ED

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

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Supreme Court, U.S. |

TABLE OF CONTENTS

Page

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DISCUSSION ............... AO Ie EO OO tee aE OT 2

I. CONTRARY TO THE CONTENTION OF THE

AMICUS, THE DISCIPLINARY NOTICES

AT ISSUE HERE WERE REQUIRED BY

THE COLLECTIVE BARGAINING AGREE-

gp ASR resi "NY a oR oR nd ea 2

Il. THE CONFLICT OF AUTHORITY THROUGH-

OUT THE LOWER COURTS REQUIRES

GUIDANCE FROM THIS COURT ......0000000.... 4d

IY, chia cpt ai. Solsee csines cadomnnnnsiteintoniintenbivensbabieiaibonion 7

APPENDIX A

Excerpt From Record Below .................0.00000.....20022.. la

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TABLE OF AUTHORITIES

Cases:

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469

CDIFGIED . sanstccinsssicesnsensisctatestitaiputnimeliiiaatiasiimaaiammemnn na,

Hasten v. Phillips Petroleum Co., 640 F.2d 274

e663 Sener enn Fe

Int'l. Bhd. of Elec. Workers, Local 1228 v. WNEV-

TV, 778 F.2d 46 (1st Cir. 1985) 000.

Johnson v. Anheuser Busch, Inc., 876 F.2d 620

So tere ne es NE

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399 (1988) ...... ne MME SR NM NRE NEE RES BBTE A oe CO

Shane v. Greyhound Lines, Inc., 868 F.2d 1057

? 3 eateries)

Strathmore Paper Co. v. United Paperworkers

Int'l. Union, Local 197, 900 F.2d 423 (1st Cir.

Textile Workers v. Linceln Mills of Alabama, 353

ik 0 Bs ; Ber arte aio Acer Me ea

United Steelworkers v. Warrior & Gulf Naviga-

tion Co., 368 U.S. 574 (1960) ...............................

Other:

Elkouri and Elkouri, How Arbitration Works, 437

i ih RRM nUKOee Moore ol cl

Page

5, 6

4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1173

FUBLIC SERVICE COMPANY OF COLORADO

and R. M. RICHARDS,

Petitioners,

vs

WILLARD A. THOMPSON,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of the State of Colorado

REPLY TO THE BRIEF FOR THE

UNITED STATES AS AMICUS CURIAE

INTRODUCTION

On April 22, 1991, the Court invited the Solicitor Gen-

eral to file a brief expressing the views of the United

States in this case. On October 23, 1991, the Solicitor

General filed his brief for the United States as Amicus

Curiae (Amicus), recommending that the Petition for a

Writ of Certiorari be denied. Due to a critical error in

fact which forms the principal basis of the- Amicus’ posi-

tion, this Reply is necessary.

2

DISCUSSION

I. CONTRARY TO THE CONTENTION OF THE

AMICUS, THE DISCIPLINARY NOTICES AT IS-

SUE HERE WERE REQUIRED BY THE COLLEC-

TIVE BARGAINING AGREEMENT.

The Amicus relies upon a fact assumed by it that the

disciplinary notices at issue here were not required by

the-Collective Bargaining Agreement between the parties.

(Amicus Brief at pp. 2, 3, 5 n.1, 7, 7 n.3, 8, 11 n.9, 18,

17). This single misapprehension of fact is the essential

factor that drives the Amicus’ position. This mistake is

based upon an erroneous comment contained in the deci-

sion of the Colorado Court of Appeals that there was no

evidence in the record that the Collective Bargaining

Agreement required written notification. (Pet. App.

26a).?

From a review of the Colorado Court of Appeals’ deci-

sion, it is clear that whether the disciplinary notices were

required by the Collective Bargaining Agreement or not

was irrelevant to that court’s decision. (Pet. App. 26a).

The Court of Appeals determined that even in the case

where notices were not required by the Collective Bar-

gaining Agreement, an absolute privilege still would be

applied. (Jd.) As such, the statement of the Court of

Appeals that there is no evidence in the record that writ-

ten notices were required by the Collective Bargaining

Agreement is not a finding of fact, as the Amicus con-

tends, but merely dicta.

Indeed, the Colorado Supreme Court was willing to as-

sume, for purposes of its opinion, that the notices were

required by the Collective Bargaining Agreement. (Ami-

1 Nevertheless, Amicus admits that at one point the Colorado

Supreme Court was willing to assume, for the purposes of its

analysis, that the statements were made in a grievance or dis-

ciplinary proceeding under a collective bargaining agreement.

(Amicus Brief at p. 5.1).

3

cus Brief at p. 5 n.1). The reason that the Colorado

Supreme Court was willing to consider such a fact is that

the record before the Colorado Court of Appeals as well

as the Colorado Supreme Court did contain unrebutted

evidence that there was a requirement to provide written

disciplinary notices to the Union pursuant to the Collec-

tive Bargaining Agreement. In an affidavit submitted in

support of Public Service Company’s Motion for Sum-

mary Judgment in the trial court and contained in the

record before the Court at R. 36, { 4, Gary Goodwin, Peti-

tioner’s Director of Labor Relations, stated:

Public Service has a long standing policy of issuing

written letters of reprimand and letters of suspen-

sion. There has also been a long standing practice

and policy relating to bargaining unit employees,

such as Plaintiff, that a copy of any discipline be

sent to the Union. This practice is so well estab-

lished as to constitute a post [sic] practice under

the Collective Bargaining Agreement (Article 30).

Failure to provide the Union with a copy of the

written letter of suspension and the written letter of

reprimand would have constituted a violation of the

Collective Bargaining Agreement.

(Appendix A at p. 2a, attached hereto). There is no

evidence in the record which challenges this conclusion.

It is an elementary principle of labor law that in addi-

tion to the written provisions of a collective bargaining

2 This excerpt from the record will be part of the record before

this Court should the Petition for a Writ of Certiorari be granted.

Petitioners invite the Court, pursuant to Supreme Ct. Rule 12.5,

to have the record transmitted at this juncture. Alternatively, this

Court could grant the Petition’ subject to confirmation of the affi-

davit’s inclusion. Should the mandatory effect of past practice be-

tween Petitioner and I.B.E.W. Local 111 as to the requirement that

disciplinary notices be in writing not be borne out by the record,

this Court could dismiss the Writ as improvidently granted. The

Court should not deny this Petition for Writ of Certiorari based

upon an erroneous understanding as to the facts involved in this

case. This is particularly true when this fact plays such a dominen:

role in the Amicus’ Brief.

4

agreement, past practices established by the parties’ con-

duct may raise those practices to such a significance that

they are incorporated in the collective bargaining agree-

ment even though not specifically mentioned. United Steel-

workers v. Warrior & Gulf Navigation Co., 363 U.S. 574,

581-582 (1960); Strathmore Paper Co. v. United Paper-

workers Int'l. Union, Local 197, 900 F.2d 423, 428 (1st

Cir. 1990); Int’l. Bhd. of Elec. Workers, Local 1228 v.

WNEV-TV, 778 F.2d 46, 48-49 (1st Cir. 1985) (quoting

Warrior & Gulf, 363 U.S. at 581-82, “industrial common

law—the practices of the industry and the shop—is

equally a part of the collective bargaining agreement al-

though not expressed in it.”), cert. denied, 476 U.S. 1182

(1986). See also, Elkouri and Elkouri, How Arbitration

Works, (4th ed. 1985). Since the record in the court

below shows that the disciplinary notices were required

by the Collective Bargaining Agreement through the doc-

trine of past practice, the major reason for the Amicus’

recommendation not to grant the Writ of Certiorari is no

longer present.

II. THE CONFLICT OF AUTHORITY THROUGHOUT

THE LOWER COURTS REQUIRES GUIDANCE

FROM THIS COURT.

Absent the factual error relied upon by the Amicus, it

appears that the Amicus would favor review of this issue *

The Amicus states:

We recognize that some confusion exists in lower

court decisions concerning the source and scope of

privileges applicable to statements made during

grievance hearings, arbitration, and other procedures

pursuant to collective bargaining agreements. Greater

3 The Amicus states that “we also do not believe that the judg-

ment of the Colorado Supreme Court is in conflict with the judg-

ment of any other court.” (Amicus Brief at p. 14). As stated

above, this conclusion is based solely upon an assumption by the

Amicus that the disciplinary letters were not required to be in

written fomn by the terms of the Collective Bargaining Agreement.

(Id. at p. 17).

5

clarity in this broad area is plainly desirable. (Em-

phasis added.)

(Amicus Brief at p. 8).

We believe that the confusion that exists in the lower

courts is indeed greater than “some confusion,” as evi-

denced by the long recitation of conflicting authorities

by Petitioners in their Petition at pp. 13-16 and the

Amicus in its Brief at pp. 12-13, 14-17 and the accum-

panying footnotes. However, while there may be a slight

disagreement as to the extent of the confusion that exists

in the lower courts, we do agree completely with the

Amicus that “greater clarity in this broad area is plainly

desirable.” (Amicus Brief at p. 8).

Textile Workers v. Lincoln Mills of Alabama, 353

U.S. 448 (1957), authorizes federal courts to fashion

a body of federal common law involving federal labor

policy to be applicable throughout the country. This is

clearly necessary in this particular area, where courts

over the years have been struggling with the issue of

the privilege to be accorded disciplinary notices and state-

ments made during grievance proceedings.‘

The attempts of the Amicus to distinguish certain cases

are not persuasive. The suggestion that the Johnson v.

Anheuser Busch, Inc., 876 F.2d 620 (8th Cir. 1989), and

Shane v. Greyhound Lines, Inc., 868 F.2d 1057 (9th Cir.

1989), were wrongly decided is not helpful, in that these

cases definitely suggest that the Eighth and Ninth Cir-

cuits apply Lingle v. Norge Div. of Magic Chef, Inc.,

486 U.S. 399 (1988), in a manner inconsistent with

Amicus’ views as to what the law should be. This under-

scores the need for this Court to take and consider this

matter, rather than letting this confusion continue. Also,

it is quite clear that the Colorado Supreme Court decision

* Indeed, the six months that the Amicus required to develop its

position in this case is a reflec¢ion of the difficulty and the con-

fusion that exist throughout the country at large.

6

here is directly contrary to Hasten v. Phillips Petroleum

Co., 640 F.2d 274 (10th Cir. 1981). It is intolerable to

reasoned jurisprudence that within the same state the out-

come of a case applying federal labor law may depend

merely on whether a party can obtain jurisdiction in

the federal courts rather than the state courts.

The determination of what type of privilege, whether

absolute or qualified, exists in the context of grievance

and arbitration proceedings is one for the Supreme Court.

The Amicus offers its opinion that a qualified privilege

should be applied nationwide. The Amicus states that, “in

our view, there is no basis for petitioners’ assertion that

absolute protection for disciplinary statements in the

workplace is necessary for grievance and arbitration

mechanisms to work effectively.” (Emphasis added.)

(Amicus Brief at p. 14). On the other hand, Petition-

ers believe, and common sense dictates, that only an

absolute privilege can effectively safeguard the free and

open communication of parties to a collective bargain

ing agreement in matters of discipline. Nevertheless,

this difference of opinion is not a reason for denying

this Petition for Writ of Certiorari. Only after a fuil

articulation of the views of the parties and any amici

who may participate should this Court decide, pursuant

to Textile Workers v. Lincoln Mills, the law to be appli-

cable throughout the country in an area which has,

based upon the cases cited by both Petitioners and the

Amicus, confounded uniform application.®

5 The Amicus admits that there is no jurisdictional obstacle to

review of this decision. (Amicus Brief, p. 17 n.17). Nevertheless,

the Amicus contends that this matter could be reviewed after a full

trial and presumably subsequent appeals through the Colorado Court

of Appeals and the Colorado Supreme Court. (/Jd.) The Colorado

‘Supreme Court’s judgment is plainly final on this federal issue and

is not subject to further review in the state courts. While Peti-

tioners here ma’ very well prevail at trial on the non-federal

grounds, if the Colorado Supreme Court improperly applied the is-

sue of privilege, there should be no trial at all. Moreover, if Peti-

tioners do prevail at trial and make unnecessary further considera-

7

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should

issue to review the judgment and opinion of the Supreme

Court of the State of Colorado.

Respectfully submitted,

DAVID W. KERBER *

KEVIN W. HECHT

KELLY, STANSFIELD & O’DONNELL

550 15th Street, Suite 900

Denver, Colorado 80202

(303) 825-3534

JAMES R. MCCOTTER

General Counsel

PUBLIC SERVICE COMPANY OF

COLORADO

550 15th Street, Suite 890

Denver, Colorado 80202

(303) 571-7161

Attorneys for Petitioners,

Public Service Company of

* Counsel of Record Colorado and R. M. Richards

tion of this question, there would remain in effect the unreviewed

decision of the State Supreme Court that disciplinary notices and

statements made during grievance proceedings are only entitled to

a qualified privilege rather than an absolute privilege. See Cor

Broadcasting Corp. v. Cohn, 420 U.S. 469, 485 (1975).

APPENDICES

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APPENDIX A

DISTRICT COURT

CITY AND COUNTY OF DENVER

STATE OF COLORADO

Civil Action No. 84 CV 12173

Courtroom 2

WILLARD A. THOMPSON,

ie Plaintiff,

PUBLIC SERVICE COMPANY OF COLORADO,

a Colorado corporation, and

R.M. RICHARDS a/k/a R. MARK RICHARDS,

Defendants.

STATE OF COLORADO )

) ss.

CITY AND COUNTY OF DENVER __)

AFFIDAVIT OF GARY GOODWIN

I, Gary Goodwin, being first duly sworn state as

follows:

1. My name is Gary Goodwin. I am the Director of

Labor Relations for Public Service Company of Colorado.

I have responsibility for administration of all Collective

Bargaining Agreements and advising authority in the

imposition of discipline on all employee’s bargaining units

or otherwise. Unless otherwise indicated, I have personal

knowledge of all of the following facts.

2. Public Service Company of Colorado has a Collective

Bargaining Agreement with the International Brother-

2a

hood of Electrical Workers (IBEW) Local Union No.

111 which covers operating, production and maintenance

employees of the Company. Plaintiff is a member of that

bargaining unit and is covered by the Collective Bargain-

ing Agreement.

3. The Collective Bargaining Agreement gives Public

Service the right to discipline employees for proper cause

(Article 2, Section 1) subject to review in the grievance

and arbitration procedures (Articles 27 and 28). The

December 6, 1983 suspension and the June 29, 1984

written reprimand were subject to review in the grievance

and arbitration procedure.

4. Public Service has a long standing policy of issuing

written letters of reprimand and letters of suspension.

There has also been a long standing practice and policy

relating to bargaining unit employees, such as Plaintiff,

that a copy of any discipline be sent to the Union. This

practice is so well established as to constitute a post

practice under the Collective Bargaining Agreement

(Article 30). Failure to provide the Union with a copy of

the written letter of suspension and the written letter

of reprimand would have constituted a violation of the

Collective Bargaining Agreement.

5. It is the usual policy of Public Service Company

of Colorado’s Supervisors when documenting any disci-

pline, to send copies of such documentation to the dis-

ciplined employee’s upper level supervisors, and to the

Public Service Company’s Labor Relations Department.

6. It is the policy of Public Service Company, which

policy is in compliance with federal labor law, that when-

ever a bargaining unit employee is questioned and that

questioning may lead to discipline, that a union steward

be provided to represent the employee.

DATED this 13th day of October, 1986.

3a

/s/ Gary Goodwin

GARY GOODWIN

Subscribed and sworn to before me this 13th day of

October, 1986, by Gary Goodwin.

WITNESS MY HAND AND OFFICIAL SEAL.

/s/ Karen L. Harr

Notary Public

My commission expires: June 6, 1988.