Respondents Brief — Rogers v. Lockheed-Georgia Co.

Office - Supreme Court. US

FITTED a

JUN 27 1024

No. 83-1958

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

GEORGE C. ROGERS,

Petitioner,

V.

LOCKHEED GEORGIA COMPANY, and

AERONAUTICAL MACHINISTS LODGE 709,

[AM&AW,

Respondents.

BRIEF OF AERONAUTICAL MACHINISTS

LODGE 709 iN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

J. R. GoLpTHWAITE, JR.

*©777 West Peachtree St., N.E.

Atlanta, Georgia 30308

404) 876-7100

Counsel of Record

>:

> BEST AVAILABLE COPY

QUESTION PRESENTED

The only question presented by the Petition for Certio-

rarl is whether this Court intended (but failed to state)

that its decision in Del Costello v. Teamsters and Steel-

workers v. Flowers, ___- U.S. ____, 103 S. Ct. 2281, 76

L.Ed.2d 476 (Nos. 81-2386 and 81-2408, June 8, 1983)

should have only prospective application.

TABLE OF CONTENTS

Page

QUESTION PREDIIN EB) 6 io iicc ec sete evewses i

Es AI A ae kink ee ae eee il

TABLE OF AU THROES TE. «cos ccc cee cews gues ill

I. STATEMENT OF THE CASE............... 1

A. FO. 6 cee ee eek 1

BS. Shadbolt GE Pee sk ie oe ks eo 2

II. REASONS WHY THE WRIT SHOULD BE

LPRREt REED <a xc ion ee ee ee 6

A. No Substantial Conflict In Circuit

EOC, 5 kpc exes eee 6

B. Del Costello Rule Was Made Retroactive

rom Its Inception In Order To Advance

te POON A enc eee ae r

C. Del Costello Rule Was Not A Break From

Established Precedent And Is No More

Inequitable Vhan Any Other Rule Of Repose.. 9

COMNCCRARIIIDN 0 6 cee oe eee ee 10

APPENDIX OF DECISIONS...........4 A-1, A-2, A-3

TABLE OF AUTHORITIES

Page

Supreme Court Cases:

Arizona Governing Committee v. Norris, US.

, @7 L.Ed.2d 1236, 51 U.S.L.W. 5243

ye sway sacks 5 ba Po whe ee wee 8

Chevron Oil Co. v. Huson, 404 U.S. 97, 106-7, 92 S.Ct.

349, 30 L.Ed.2d 296 (1971).................... 8, 10

Del Costello v. Teamsters Union, ___ U.S.

103 8. Ct. 2281, 76 L.Ed.2d 476 (1983)....... passim

Great Northern R. Co. v. Sunburst Oil & Ref. Co.,

287 U.S. 358, 53'S. Ct. 145, 77 L.Ed. 360, 366

id IRGC a Ov ee a 8

Hospital and Health Care Employees v. Assad,

—____. U.S. —__, 78 L.Ed.2d 73, #82-1975,

ee Siew a neces wy Kidd dw aid 8

James v. United States, 366 U.S. 218, 81 8. Ct. 1052,

ee 8) | ee 8

Linkletter v. Walker, 381 U.S. 618, 621-29,

85 S. Ct. 1731, 14 L.Ed.2d 601 (1965)...........7,8

Steelworkers Union v. Flowers, ___. U.S. ___,

103 8S. Ct. 2281, 76 L.Ed.2d 476 (1983)....... passim

Teamsters Union v. Edwards, U.S.

77 L.Ed.2d 1360, #82-1054, June 20, 1983........ 8

United Parcel Service v. Mitchell, 451 U.s. 56, 101

S. OS. 1650, G7 b.Ed.2d 732 (1981).............. a

Courts of Appeal Decisions:

Aarsvold v. Greyhound Lines, 724 F.2d 72

of a A ppendix

Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252,

258 (5th Cir.), cert. denied 449 U.S. 899 (1980)... 2

Andres v. Teamsters Union, 724 F.2d 73

Us MOEN 6 op vee e sev esr ce kv vtacenaee Appendix

TABLE OF AUTHORITIES (Continued)

Page

Courts of Appeal Decisions: (Continued)

Arrow v. Pulitizer Publ. Co. (St. Louwis-Post

Dispatch), 723 ¥.2d 622 (8th Cir., 1983).....: Appendix

Askew v. F&W Express, Inc., 723 F.2d 624

ee a eae

Assad v. Mt. Sinai Hospital, 725 F.2d 837 (2nd

Cir., 1984), conforming to ____. U.S. ;

S. Ct. ___, 78 L.Ed.2d 73, 482-1975,

fo ef ee ee ee 9, Appendix

Berina v. Gulf Trading & Transport Co., 726 F.2d

gt | eS | ee re Appendix

Benson v. General Motors Corp., 716 F.2d 862

FR es I nbs occu co vuake ween aed Appendix

Curtis v. Teamsters Union Local 299, 716 l°.2d 360

3t | eee eer reese Appendix

Derwin v. General Dynamics Corp., 719 F.2d 484,

Oe, Se Cee Si Bs oe ne kes cknsceceus A ppendix

Edwards v. Sea-Land Service, Inc., 720 F.2d 857

(5th Cir., 1983), conforming to ___ U.S. ,

S. Ct. ___, 77 L.Ed.2d 1360, 482-1054,

SO he eae ewes 7,5, 9, Appendix

Edwards v. Teamsters Union Local 36, 719 F.2d 1036

(9th Cir., 1983), cert. den. 52 LW 3687, #83-1211,

pee ag sw ae cea ee ee 9, Appendix

Erkins v. Steelworkers Union, 723 F.2d 837

(11th Cir., 1984), cert. denied 52 LW 3888,

#83-1866, June 11, 1984...................Appendix

Ernst v. Indiana Bell Telephone Co., 717 F.2d 1036

(7th Cir., 1983), cert. den. 52 LW 3509, #83-687,

INE Sr I ok vcr ne daw conn eek ee Appendix

Farr v. H. K. Porter Co., 727 F.2d 502

Oe OR ee ere Appendix

iv

TABLE OF AUTHORITIES (Continued)

Page

Courts of Appeal Decisions: (Continued)

Gustafson v. Cornelius Co., 724 F.2d 75

COU Ss SU heb os eee Appendix

Hand v. Chemical Workers Union, 712 F.2d 1350

(REM Rh. Ds ok as oe Appendix

Lincoln v. Machinists Union District Lodge 9,

720 © .20 Gai (Btn Cit., TUBB). «ccc nce as Appendix

Majewski v. B’nat Brith International,

721 F.2d 823, 824, n.3 (D.C. Cir., 1983)..... Appendix

McNaughton v. Dillingham Corp., 722 F.2d 1459

(9th Cir., 1984), pet. for cert. filed, April 26, 1984,

Ea enn Mime ome eat ba Appendix

Metz v. Tootsie Roll Industries, 715 F.2d 299

(7th Cir., 1983), cert. den. 52 LW 3534, #83-819,

Jammy DR TG. OE a Appendix

Murray v. Branch Motor Express Co., 723 F.2d 1146

(ie Cae. FR ei eee Appendix

National Assn. of Broadcasters v. FCC,

554 F.2d 1118, 1130 (D.C. Cir., 1976)............ 7

| Perez v. Dana Corporation, 718 F.2d 581

| (Sek Cr, FG. ws os Se exiawaewres 7, 8, 9, Appendix

| Pitts v. Frito-Lay, Inc., 700 F.2d 330

(Gite Ce. THON: oo 0b ks SES he ee 7

| Rogers v. Lockheed Georgia Co., 720 F.2d 1247

(21700 4, SR ss re ee 7, 8, 9, Appendix

| Scott v. Teamsters Union Local 863, 725 F.2d 226

CE Cs SE «cs ase s She Ma eee 7, Appendix

Stahlman v. Kroger Co., 723 F.2d 621

8S es es i re ek Appendix

e

a a

TABLE OF AUTHORITIES (Continued)

Page

Courts of Appeal Decisions: (Continued)

Storck v. Teamsters Union Local 600,

712 F.2d 1194 (7th Cir., 1983).............4 Appendix

Vadasz v. Greyhound Lines, 723 F.2d 620

(fe Are reer Appendix

Wilcoxen v. Kroger Co., 723 F.2d 626

Gee Sala SEE: sla v Use cae BAAS ASE EN Appendix

vl

IN THE

Supreme Court of the United States

October Term, 1983

No. 83-1958

GEORGE C. ROGERS,

Petitioner,

v.

LOCKHEED GEORGIA COMPANY, and

AERONAUTICAL MACHINISTS LODGE 709,

LAM«&AW,

Respondents.

BRIEF OF AERONAUTICAL MACHINISTS

LODGE 709 IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

I.

STATEMENT OF THE CASE

A. Preface

In their appeals to the Eleventh Circuit, both Lock-

heed and Lodge 709 asserted that the District Court

Opinion. and Judgment were unauthorized by the facts

and contrary to iaw. Since this fact is not reflected in the

largely immaterial Statement in the Petition for Certio-

rari, we are compelled to make the following largely im-

material, but brief, statement of facts.

1

hihi

2

B. Statement Of Facts

The appellee, George C. Rogers, was first employed by

Lockheed Georgia on July 12, 1965, and, except for two

layoff periods, worked continuously at the company’s

Marietta plant until layoff in January, 1977. R. 422. He

forfeited his seniority by failing to respond to a notice of

recall from layoff mailed to him on June 20, 1978. He was

rehired by Lockheed Georgia on March 9, 1979, was pro-

moted to a supervisory position in October 1980, and is

still employed by the Georgia Company. R. 423; TR 58,

58-59, 254-55. This hybrid breach of duty —301 action

was filed in the District Court on March 21, 1980.

On May 1, 1981, the Union filed a Motion for Summary

Judgment upon the basis that the action was time-

barred. (R. 467). This motion was not ruled upon and

was renewed at trial. The action was tried June 26-29,

1981, without a jury. On September 30, 1981, the trial

court entered Findings of Fact and Conclusions of Law '

and entered Judgment against the defendants. (R. 631-

37). The Court did not address the timeliness issue.

The Union filed motion for reconsideration and again

urged that the action had not been timely filed. (R. 640).

The motion was denied (R. 669-70) and thereafter Lock-

heed Georgia and Lodge 709 appealed (R. 671).

Several weeks after his January, 1977, layoff Mr.

Rogers learned of and applied for an opening in Tehran,

Iran, with Lockheed Air Services (‘‘LAS’’) which is a

separate and independent division of the Lockheed Cor-

1 The trial cuurt’s conclusions of law were identical to proposed con-

clusions submitted by the plaintiff prior to trial and were challenged

on appeal. See Amstar Corp. v. Domino's Pizza, Inc., 615 F.2d 252,

258 (5th Cir.), cert. denied, 449 U.S. 899 (1980).

3

poration. (Tr. 26-27). Rogers was employed by LAS in

March 1977. By virtue of his previous layoffs Rogers

admittedly was familiar with the change of address re-

quirements imposed upon laid-off employees by Lock-

heed Georgia’s contract with the Union. (R. 62-63).

The contract provides:

An employee shall lose his seniority upon the happen-

ing of any one of the following events: . . .

* * *

(3) If, after a iayoff, the employee is notified to re-

port for an interview for work, by certified mail, or

telegram, addressed to him at his address on record

at time of layoff (or to the last subsequent address

delivered by certified mail, telegram, or in person to

the Employment Office of the plant), and fails within

one (1) week after notification or such additional

time as the Company may grant either to report for

an interview or to deliver to the Company a reason-

able excuse for failure to report.

Plf. Exhibits 17 and 18, Part B-Art. IV, Sec. 8; also

R. 632-33.

The contract also provides:

Failure on the part of an employee to keep the Com-

pany informed of his correct address and telephone

number relieves the Company of the responsibility of

any notification required by this agreement.

Plf. Exhibits 17 and 18, Part B-Art. VII, Sec. 8.

Despite his admitted awareness of the change of ad-

dress requirements, Mr. Rogers prior to leaving for Iran

failed to fill out the customary “change of address form”’

provided by Lockheed-Georgia or otherwise to assure

that the Company had been notified officially of his

change of address. (Tr. 62-65).

‘

=

In June, 1978, Lockheed Georgia began to recall laid-

off employees. On June 20, 1978, Lockheed sent a recall

notice to Mr. Rogers offering him reemployment. This

notice was sent to Rogers’ Powder Springs, Georgia,

address. That address was the only address which he had

on file with the Company. (Tr. 220-222). Rogers, in

Tehran, Iran, at that time, did not respond to this notice

of recall within seven days. (Tr. 222-224). On June 29,

1978, Lockheed notified Rogers by letter at his Powder

Springs address that because of his failure to respond, he

had forfeited his seniority and recall rights under the col-

lective bargaining agreement. (Tr. 222-224).

Prior to this attempt of Lockheed to recall Mr. Rogers,

Vice President Moody of Lodge 709 learned that the

Company planned to recall Mr. Rogers and that Mr.

Rogers had failed to change his address at the Lockheed

personnel office. (Tr. 260-61). Mr. Moody contacted two

company personnel officials and requested that, in addi-

tion to sending Mr. Rogers’ notice to his Georgia ad-

dress, they also attempt to reach him in Iran. (Tr. 261-

63). Since such additional notification was not required

by the collective bargaining agreement, the Company

declined to do so. (Tr. 262). Mr. Moody also spoke to a

relative of Mr. Rogers and urged that he attempt to

reach Mr. Rogers in Iran. (Tr. 260-61).

On July 3, 1978, Mr. Rogers returned to Georgia on a

three-week vacation and learned of his recall notice and

the subsequent loss of his seniority rights (Tr. 33-34). On

the first day Lockheed’s employment office was open

after the July 4, 1978 holiday, Mr. Rogers went in person

to the employment office to discuss the recall notice and

his loss of seniority (Tr. 34-35). During his vacation in

Georgia, Mr. Rogers also discussed his loss of seniority

vo

with Union Vice-President Moody (R. 633). Mr. Moody

advised Mr. Rogers that in sending the recall notice to

the address on file with the Company, Lockheed had not

breached the collective bargaining agreement. (Tr. 263,

41-42).

Although the Union had successfully handied griev-

ances which he had filed in the past, Mr. Rogers did not

file a grievance prior to his return to Iran following his

vacation. (Tr. 67). In February, 1979, because of political

turmoil in Iran, Mr. Rogers was evacuated from Iran to

the United States and on March 9, 1979, accepted reem-

ployment with Lockheed Georgia in an entry-level job.

As a newly-hired employee, Mr. Rogers received a new

seniority date. (Tr. 44-45). After Mr. Rogers reported to

work for his reemployment, he discussed his loss of

seniority with a Union steward who suggested that he file

a grievance (Tr. 44-48). The Union steward filled out the

grievance form, Mr. Rogers signed it on or about March

i6, 1979, and the steward submitted it to the Company.

(Tr. 67). The Company rejected Mr. Rogers’ grievance

on the basis that it was untimely. (Tr. 205-07).?

The Union agreed that Mr. Rogers’ grievance was un-

timely and also determined that it lacked merit; there-

fore, the Union did not process it beyond the first step of

the grievance procedure. (Tr. 280-81; 294-95).

The Union and the Company were in agreement that

the collective bargaining agreement required the Com-

2 Part B, Article LI], Sec. 1, of the Union contract provides that

grievances arising from discharge shall be signed by the employee and

filed within 10 Gays after discharge. Failure to respond to recall notice

has been mutually interpreted to be synonymous with discharge.

Rogers had actual notice of his termination and could have filed a

timely grievance while at the plant in early July, 1978. (Tr. 36,

241-42, 250, 281).

6

pany to send notices of recall only to the address which

an employee maintained on file with the Company and

that it was the employee’s responsibility to notify Lock-

heed of changes of address either in person or by certified

mail or telegram. (Tr. 222-24, 263, 280-81, 286, 295).

The District Court found that the Union had processed

grievances similar to that of Mr. Rogers on behalf of two

other employees. Each of those employees, however, had

filed properly filled out change of address forms and had

failed to receive their recall notices through no fault of

their own. (Tr. 282-88).

Shortly after the Union withdrew his grievance, Rogers

filed an unfair labor practice charge with the National

Labor Relations Board in which he charged the Union

with a breach of its duty of fair representation in failing

to process his grievance further (Tr. 69). On June 4, 1979,

the Board’s General Counsel refused to issue a complaint

against the Union because the Regional Director deter-

mined that Mr. Rogers’ grievance had not been timely

filed. (Tr. 69-70). This action was filed a year later, on

March 21, 1980.

Il.

REASONS WHY THE WRIT SHOULD BE DENIED

A. No Substantial Conflict In Circuit Decisions

As of this writing, since the Del Costello decision * in

June, 1983, nine circuit courts have decided whether the

decision applied to pending cases and thus had ‘‘retro-

active” application. Eight circuits ‘ have decided affirma-

3 Del Costello v. Teamsters Union, US. , 103 8. Ct. 2281,

76 L.Ed.2d 476 (June 8, 1983).

4Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and

Eleventh Circuits.

a

tively and one | Ninth] has decided negatively. In addition

two circuits [First and D.C.] have acknowledged the

decision and distinguished it from cases sub judice. Only

the Tenth Circuit has no reported decision which cites or

discusses Del Costello. The circuit court decisions are

listed and categorized in the Appendix of Decisions, infra.

Consequently, there is no substantial conflict between

the circuits upon the question presented in this case.5

B. Del Costello Rule Was Made Retroactive From Its

Inception In Order To Advance Its Purposes

As was noted by the Third, Fifth and Eleventh Circuits

in their decisions specifically holding that the Del Costello

rule should be applied to pending cases,* it is a “general

rule of long standing . . . that judicial precedents normally

have retroactive as well as prospective effect.’”’? National

Association of Broadcasters v. FCC, 554 F.2d 1118, 1130

(D.C. Cir., 1976). That “general rule” is a rule of neces-

sity because when the law is feund and declared by the

Court in the case under review, the rule of law which is

found and declared is applied in that case; otherwise, the

rule of law would be obita dicta. See historical discussions

in Linkletter v. Walker, 381 U.S. 618, 621-29, 85 S.Ct.

5 Petitioner’s assertion that Third and Sixth Circuit decisions

create conflict is incorrect. Pitts v. Frito-Lay, Inc., 700 F.2d 330 (6th

Cir., 1983) was decided several months before the Del Costello de-

cision was issued; and Scott v. Teamsters Union Local 863, 725 F.2d

226 (3rd Cir., 1984) gives retroactive application to the Del Costello

rule.

6 Perez v. Dana Corporation, 718 F.2d 581, 584 (3rd Cir., 1983);

Edwards v. Sea-Land Service, Inc., 720 F.2d 857, 859 (5th Cir., 1983),

conforming to US. , 77 L.Ed.2d 1360, June 1983; Rogers v.

Lockheed Georgia Co., 720 F.2d 1247, 1249 (11th Cir., 1983).

7 “Retroactive” connotes application to cases pending in which

judgments remain subject to review but not to the reopening of

closed proceedings. Linkletter v. Walker, 381 U.S. 618, 621-29, 85

S. Ct. 1731, 14 L.Ed.2d 601 (1965).

8

1731, 14 L.Ed.2d 601 (1965), and in 1B Moore, Federal

Practice, {{ 0.402 [3-2-1, et seq], pages 56-95.

Consequently, on occasion, when this Court has in-

tended that its decisions would have only prospective or

partially prospective application, it has included such a

provision in the decision itself.*

However, the decision in Del Costello was not restricted

in its application by this Court but was applied retro-

actively in both the Flowers and Del Costello cases, and

the issue of retroactivity had been raised in the latter case.

See 76 L.Ed.2d, at 496, n. 2. Furthermore, the intention of

this Court that the Del Costello rule should apply to pend-

ing cases is shown by its own retroactive application of the

rule in other cases.9 See Linkletter, supra, 381 U.S., at 622

and n. 4.

It seems to us, therefore, that the Third, Fifth, Ninth

and Eleventh Circuits were somewhat presumptuous in

their Perez, Edwards [Fifth and Ninth], and Rogers de-

cisions '° in undertaking to apply the Chevron v. Huson

analysis " to the Del Costello rule when this Court had

already demonstrated its intention that the rule would

8’ See, e.g., Arizona Governing Committee v. Norris, US.

77 L. Ed.2d 1236, 51 U.S.L.W. 5243 (July 6, 1983): James v. United

States, 366 U.S. '213, 81 S. Ct. 1052, 6 L.Ed.2d 246 (1961). Aiso,

Great Northern R. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 53 S.

Ct. 145, 77 L.Ed. 360, 366 (1932).

* Certiorari was granted and judgments were rev ersed, citing Del

Costello, in Teamsters Union v. Edwards, US. , 77 L.Ed.2d

1360, #82- 1054, June 20, 1983; and Band 78. and Health Care Em-

ployees v. Assad, saass

1983.

1° Appendix of Decisions, infra.

11 Chevron Oil Co. v. Huson, 404 U.S. 97, 106-7, 92 S. Ct. 349,

30 L.Ed.2d 296 (1971).

dee

9

have “retroactive” application."

Nevertheless, the Third, Fifth and Eleventh Circuits

in undertaking that analysis gave proper weight to the

second factor—the purpose of the rule in fostering the

prompt dispatch of labor disputes and uniformity in the

Federal regulatory scheme —which was so strongly em-

phasized by this Court in the Del Costello decision and

properly held that the rule was applicabie to pending

cases in order to advance the purpose of the rule.

C. Del Costello Rule Was Not A Break From

Established Precedent And Is No More In-

equitable Than Any Other Rule Of Repose

The Third, Fifth and Eleventh Circuits correctly find

in their Perez [718 F.2d, at 586], Edwards [720 F.2d, at 861

and 862], and Rogers [720 F.2d, at 1250] decisions that

prior to Del Costello ‘‘a legally chaotic situation’’ was the

rule, that there was no ‘‘clear past precedent”’ and that

the purpose of Del Costello was to remedy the ‘‘incon-

sistent results” which were prevailing. Hence the six

months rule was no break from well esrablished pre-

cedent.'*

All statutes of limitation will be called inequitable by

some, but praised by others. In Del Costello and in others

of the cases listed in the Appendix of Decisions, infra,

plaintiffs benefited by the reinstatement of cases which

previously had been dismissed by the application of

shorter periods of limitation than the new uniform six

months rule.

'2 Like the present case, none of these cases presented special facts

showing reliance upon representations of the defendants with result-

ing delay in the instigation of the litigation, such as could create an

equitable estoppel.

18 Cf. United Parcel Service v. Mitchell, 451 U.S. 56, 101 8. Ct. 1559,

67 L.Ed.2d 732 (1981). Georgia has no statute of limitations generally

applicable to arbitration awards.

10

Rules of repose, standing alone, do not present uncon-

scionable situations of reliance on existing law or create

estoppel by promise or contract. In other words, ‘“‘equity’’

aids those who are vigilant and diligent and such rules are

not ‘inequitable’.

Therefore, application of the three factors delineated in

Chevron v. Huson results, on all counts, in the conclusion

that the Del Costello rule is applicable ‘‘retroactively”’ to

pending cases.

CONCLUSION

For the reasons stated the petition for certiorari should

be denied.

Respectfully submitted,

J. R. GOLDTHWAITE, JR.

777 West Peachtree Street, N.E.

Atlanta, Georgia 30308

(404) 876-7100

APPENDIX

APPENDIX OF DECISIONS

Del Costello Rule Retroactive

Second Circuit:

Assad v. Mt. Sinai Hospital, 725 F.2d 837 (2nd Cir., 1984),

conforming to __. U.S. S. Ct. _—

L.Ed.2d 73, 482-1975, October 3, 1983) ;

Steelworkers Union v. Flowers, —. U.S.

2281, 76 L.Ed.2d 476 (1983), amie 671 F.2d 87

(2nd Cir., 1982).

Third Circuit:

Perez v. Dana Corporation, 718 F.2d 581 (3rd Cir., 1983) ;

Scott v. Teamsters Union Local 863, 725 F.2d 226 (3rd

Cir., 1984).

Fourth Circuit:

Del Costello v. Teamsters Union, —_. U.S. ., 1038. Ct.,

2281, 76 L.Ed.2d 476 (1983), reversing and remanding

679 F.2d 879 (4th Cir., 1982);

Murray v. Branch Motor Express Co., 723 F.2d 1146 (4th

Cir., 1983).

Fifth Circuit:

Edwards v. Sea-Land Service, Inc., 720 F.2d 857 cw Cir.,

1983, conforming to Us.

77 L.Ed.2d 1360, 82-1054, June 20, 1983);

Farr v. H. K. Porter Co., 727 F.2d 502 (5th Cir., 1984).

Sixth Circuit:

Curtis v. Teamsters Union Local 299, 716 F.2d 360 (6th

Cir., 1983).

Seventh Circuit:

Storck v. Teamsters Union Local 600, 712 F.2d 1194 (7th

Cir., 1983) ;

Metz v. Tootsie Roll Industries, 715 F.2d 299 (7th Cir.,

1983), cert. den. 52 LW 3534, #83-819, Jan. 16, 1984;

A-l

A-2

Ernst v. Indiana Bell Telephone Co., 717 F 2d 1036 (7th

Cir., 1983), cert. den. 52 LW 3509, #83-687, January

9, 1984.

Eighth Circuit:

Lincoln v. Machinists Union District Lodge 9, 723 F.2d 627

(8th Cir., 1983);

Vadasz v. Greyhound Lines, 723 F.2d 620 (8th Cir., 1983) ;

Stahiman v. Kroger Co., 723 F.2d 621 (8th Cir., 1983);

Arrow v. Pulitizer Publ. Co. (St. Louis Post-Dispatch),

723 F.2d 622 (Sth Cir., 1983);

Askew v. F&W Express, Inc., 723 F.2d 624 (8th Cir.,

1983) ;

Wilcoxen v. Kroger Co., 723 F.2d 626 (Sth Cir., 1983);

Aarsvold v. Greyhound Lines, 724 F.2d 72 (8th Cir., 1984);

Andres v. Teamsters Union, 724 F.2d 73 (8th Cir., 1983);

Gustafson v. Cornelius Co., 724 F.2d 75 (8th Cir., 1983).

Eleventh Circuit:

Hand v. Chemical Workers Union, 712 F.2d 1350 (11th

Cir., 1983) ;

Benson v. General Motors Corp., 716 F.2d 862 (11th Cir.,

1983) ;

Rogers v. Lockheed Georgia Co., 720 F.2d 1247 (11th Cir.,

1983) ;

Erkins v. Steelworkers Union, 723 F.2d 837 (11th Cir.,

1984), cert. denied 52 LW 3888, #83-1866, June 11,

1984.

Del Costello Rule Prospective

Ninth Circuit:

Edwards v. Teamsters Union Local 36, 719 F.2d 1036 (9th

Cir., 1983), cert. den. 52 LW 3687, #83-1211, March

19, 1984;

A-3

McNaughton v. Dillingham Corp., 722 F.2d 1459 (9th

Cir., 1984), pet. for cert. filed, April 26, 1984, 483-1739;

Barina v. Gulf Trading & Transport Co., 726 F.2d 506

(9th Cir., 1984).

Del Costello Rule Acknowledged

District of Columbia Circuit:

Majewski v. B'nai Brith International, 721 F.2d 823, 824,

n. 3 (D.C. Cir., 1983).

First Circuit:

Derwin v. General Dynamics Corp., 719 F.2d 484, 487, 489

(Ist Cir., 1983).