# Respondents Brief — Rogers v. Lockheed-Georgia Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 916

## Text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2900%3A2. Public record. Not legal advice.