Opposition Brief — Steven D. Simon v. Kroger Company

Office - Supreme Court, U.S.

(») FILED

No. 84-1427 _ APR 3 1985

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In The = }

Supreme Court of the United States

October Term, 1984

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STEVEN D. SIMON,

Petitioner,

vs.

THE KROGER COMPANY and

GENERAL TEAMSTERS LOCAL 528, '

Respondents.

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ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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RESPONDENT GENERAL TEAMSTERS LOCAL

528’°S BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE

UNITED STATES COURT 7F APPEALS

FOR THE ELEVENTE CIRCUIT

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Frank B. SHUSTER

Counsel of Record

116 East Howard Avenue

Decatur, Georgia 30030

(404) 373-5515

Attorney for General

Teamsters Local 528

COCKLE LAW BRIEF PRINTING CoO., (800) 835-7427 Ext. 333

BEST AVAILABLE COPY

QUESTIONS PRESENTED

Did the Eleventh Circuit correctly affirm the Dis-

trict Court’s dismissal of Petitioner’s hybrid breach of

contract/breach of the duty of fair representation action

based upon Petitioner’s failure to satisfy the requirements

of the applicable statute of limitations, 29 U.S.C. § 160(b) ?

ii

TABLE OF CONTENTS

Page

Questions Presented _. i

Table of Contents ii

Table of Authorities ii

Jurisdiction 1

Statement of the Case 2

a. The Relevant Facts i 2

b. The Proceedings Below 3

Reasons for Denying the Writ 5

a. Summary of Argument _ 5

b. Argument 6

1. The Petition Does Not Present Spe-

cial or Important Reasons Warranting

Review 6

2. The Cireuit Court Correctly Affirmed

the District Court’s Dismissal in that

Petitioner Failed to Satisfy the Re-

quirements of the Applicable Statute of

Limitations 8

Conclusion 12

TABLE OF AUTHORITIES

A. Cases

Caldwell v. Martin Marietta Corporation, 632

F.2d 1184 (CA 5, 1980) 4,10

Del Costello v. International Brotherhood of

Teamsters, 462 U.S. 151 (1983) 3, 6,7, 8,9, 10

Dunlap v. Lockheed-Georgia Company, et al., Case

No. 84-8329 (CA 11, 1984) a 2,6

—

-

eae -

ill

TABLE OF AUTHORITIES—Continued ~

Page

Howard v. Lockheed-Georgia silt et al., 742

F.2d 612 (CA 11, 1984) oe 2,6

Lane & Bowler Corp. v. Western Well Works,

Inc., 261 U.S. 387 (1972) 7

Local Lodge 1424 International Association of

Machinists v. National Labor Relations Board,

362 U.S. 411 (1960) hie 9

National Labor Relations Board v. Auto Ware-

housers, Inc., 571 F.2d 860 (CA 5, 1978) . i)

National Labor Relations Board v. Haskell Com-

pany, 616 F.2d 136 (CA 6, 1980) _.. 9

National Labor Relations Board v. McCready ¢&

Sons, Inc., 482 F.2d 872 (CA 6, 1973) 9

Rice v. Sioux City Memorial Park Cemetery, Inc.,

I Wi etch coenetineneiation eantinesiiont 7

Simon v. The Kroger Company, et al., 743 F.2d

1544 (CA 11, 1984) 2, 6

United States v. Matles, 356 U.S. 256 (1958). 7,11

B. Sratutes, Rutes anp REGULATIONS

8 U.S.C. § 1451 . 11

29 U.S.C. § 160(b) a passim

29 U.S.C. § 185 8

Rule 4, Federal Rules of Civil Procedure 7

Rule 17, Supreme Court Rules 1,6

Local Rule 91.2, United States District Court

Northern District of Georgia — 4

C. TREATISES

Moores Federal Practice (2nd Ed., 7“ § 3.04

at p. 3-21 es 11

No. 84-1427

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—

In The

Supreme Court of the United States

October Term, 1984

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STEVEN D. SIMON,

Petitioner,

vs.

THE KROGER COMPANY and

GENERAL TEAMSTERS LOCAL 528,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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.

RESPONDENT GENERAL TEAMSTERS LOCAL

528’S BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

JURISDICTION

Respondent does not believe that any of the consid-

erations under Rule 17 of the Supreme Court have been

met.

The Circuits are not in conflict concerning the need

for a Plaintiff, in a breach of contract/breach of duty of

1

fair representation action to satisfy both the filing and

service requirements imposed upon such actions by 29

U.S.C. §160(b). The Eleventh Circuit has consistently

required complete compliance with the requirements of

29 U.S.C. §160(b) in actions of this type, Simon v. The

Kroger Company, et al., 743 F.2d 1544 (CA 11, 1984);

Howard v. Lockheed-Georgia Company, et al., 742 F.2d

612 (CA 11, 1984); Dunlap v. Lockheed-Georgia Company,

et al., Case Number 84-8329 (CA 11, 1984), and no other

circuit has taken a contrary view.

Moreover, the decision of the Eleventh Circuit in the

instant case correctly applied the rulings of this Court

and no important question of Federai law is presented by

the Petition.

The instant petition does not present a question which

warrants discretionary review.

STATEMENT OF THE CASE

I.

The Relevant Facts

Petitioner was employed by Respondent The Kroger

Company (hereinafter referred to as “Respondent Com-

pany”) from September 6, 1978 through February 18, 1982.

On February 18, 1982, Petitioner was discharged from em-

ployment with Respondent Company. Thereafter, Peti-

tioner filed a grievance protesting his discharge. Respond-

ent General Teamsters Local 528 (hereinafter referred

3

to as “Respondent Union”) processed this grievance and

a grievance hearing was held on March 25, 1982. A deci-

sion denying Petitioner’s grievance was issued and re-

ceived by Petitioner no later than July 6, 1982 (R. 39, 40,

203, 204).

II.

The Proceedings Below

On January 3, 1983, Petitioner filed his complaint in

the United States District Court for the Northern District

of Georgia alleging that Respondent Union had breached

the duty of fair representation owing to Petitioner and

that Respondent Company had discharged Petitioner in

violation of the applicable collective bargaining agree-

ment (R. 2, 3). Respondent Company was served with a

copy of the complaint on January 12, 1983 and Respondent

Union was served with a copy of the complaint on Jan-

uary 26, 1983 (R. 10, 11, 12, 19).

On June 10, 1983, Respondent Company filed a Mo-

tion for Summary Judgment which was amended on July

5, 1983. Respondent Company asserted, pursuant to the

Court’s decision in Del Costello v. International Brother-

hood of Teamsters, 462 U.S. 151 (1983), that the applicable

statute of limitations for an action such as this is the lim-

itations period prescribed by Section 10(b) of the National

Labor Relations Act, 29 U.S.C. § 160(b). Respondent Com-

pany further contended that, inasmuch as Section 10(b)

requires both filing and service of a complaint within six

(6) months of accrual of the action to satisfy the limita-

tions period, Petitioners complaint was time barred in

that the Complaint was not served within six (6) months

of the date the cause of action accrued to Petitioner (R.

30, 134).

Petitioner responded to the above-described motions

on September 6, 1983 (R. 139). On September 28, 1983,

the District Court held that the applicable limitations pe-

riod was Section 10(b) of the National Labor Relations

Act and, since Petitioner had not satisfied the service re-

quirements of said Section within the time allowed therein,

the action was barred. The District Court also held that

Respondent Company’s Motion was unopposed in that Pe-

titioner, without explanation, had failed to respond to

Respondent Company’s Motion within the time allowed

by Local Rule 91.2 (R. 157, 267).

Thereafter, Petitioner, relying upon Caldwell v. Mar-

tin Marietta Corporation, 632 F.2d 1184 (5th Cir., 1980)

moved the District Court for reconsideration of its Order

dismissing the complaint. On December 22, 1983, the Dis-

trict Court denied Petitioner’s Motion for Reconsidera-

tion by holding that the general rule expressed in Cald-

well v. Martin Marietta, supra, was not applicable to the

instant case due to the specific statutory requirements of

Section 10(b) and the special policy considerations which

gave rise to those requirements (R. 25).

On October 24, 1983, Respondent Union filed a Mo-

tion for Summary Judgment asserting, inter alia, that the

complaint was barred by the applicable limitations period

(R. 173). Petitioner responded to this motion on Novem-

ber 23, 1983 (R. 254). On January 23, 1984, the District

Court granted Respondent Union’s Motion by holding that

Petitioner had failed to satisfy the service requirement

of Section 10(b), 29 U.S.C. § 160(b) (R. 271).

SS G&G

5

On February 24, 1984, Petitioner filed a Notice of

Appeal, appealing the judgment of the District Court dis-

missing his complaint as to both Respondents. The United

States Court of Appeals for the Eleventh Circuit affirmed

the District Court’s judgment on October 15, 1984 and de-

nied Petitioner’s Petition for Rehearing on December 6,

1984.

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REASONS FOR DENYING THE WRIT

A.

Summary of Argument

(1) The decision of the Eleventh Circuit in the in-

stant case correctly applied the requirements of 29 U.S.C.

§ 160(b) to cases of this type and is not in conflict with

the decisions of any other circuit or this Court.

(2) The Petition does not present any special or im-

portant questions of Federal law warranting discretionary

review.

(3) The requirement that a Plaintiff satisfy both

the filing and service requirements of 29 U.S.C. § 160(b)

in a hybrid breach of contract/breach of duty of fair rep-

resentation lawsuit is consistent with the underlying pol-

icy considerations favoring relatively rapid resolution of

labor disputes.

(4) The cases relied upon by Petitioner do not in-

volve the specific statutory requirements found in 29

U.S.C. §160(b) nor the special policy considerations un-

- derlying those requirements.

(5) When a Federal statute imposes additional re-

quirements beyond mere filing in order to commence an

action, mere filing without satisfying those additional

prerequisites cannot toll the limitations period.

ARGUMENT

1. The Petition Does Not Present Special Or Im-

portant Reasons Warranting Review.

Rule 17 of the Court’s Rules provides that a Petition

for a Writ of Certiorari will only be granted where there

are special and important reasons therefor. In the instant

case, no such reasons exist.

Initially, there is no conflict among the Circuit Courts

on the issue presented herein, and the one Circuit which

has ruled on the issue has done so consistently, Simon v.

The Kroger Company, et al., supra; Howard v. Lockheed-

Georgia Corporation, et al., supra; Dunlop v. Lockheed-

Georgia Corporation, et al., supra.

Furthermore, there has been no departure from a

prior decision of this Court in the instaut case. In Del

Costello uv. International Brotherhood of Teamsters, su-

pra, the Court engrafted the six (6) month limitation pe-

riod of 29 U.S.C. § 160(b) onto hybrid breach of contract/

breach of duty of fair representation actions. However, a

fair reading of Del Costello reveals that the Court was

not presented with the issue of, and did not decide, wheth-

er the Plaintiff therein had satisfied the requirements of

7

29 U.S.C. § 160(b). The Eleventh Circuit’s decision in the

instant case is a logical extension of Del Costello v. In-

ternational Brotherhood of Teamsters, supra, in that the

Circuit Court required Plaintiff to satisfy the specific

statutory requirements of 29 U.S.C. §160(b) previously

held by this Court to be applicable to actions of this type.

A decision which, as discussed hereinafter, is consistent

with the holdings in other cases involving Federal statutes

which impose additonal requirements beyond mere filing

of a complaint in order to commence an action, United

States v. Metles, 356 U.S. 256 (1958).

As this Court has stated several times, the Writ of

Certiorari should not be granted except in cases involving

principles the settlement of which is of importance to the

publie as distinguished from that of the parties, and in

cases where there is a real and embarrassing conflict of

opinion between the Circuit Courts of Appeal, Lane &

Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387,

393 (1922); Rice v. Sioua City Memorial Park Cemetery,

Inc., 349 U.S. 70 (1955). No such situations are presented

herein.

As to the special and important reasons for granting

the Writ, the Court has stated that this implies a reach to

problems beyond the academic or the episodic, Rice v.

Sioux City Memorial Park Cemetery, supra, at 74. In

light of amended Rule 4 of the Federal Rules of Civil Pro-

cedure, the Petition herein, at best, presents an episodic

situation which does not warrant review.

In an effort to create conflicts between the Eleventh

Cireuit’s holding herein and Del Costello v. International

Brotherhood of Teamsters, supra, Petitione~ asserts, with-

out support or explanation, that the practical effect of the

8

Eleventh Cireuit’s decision herein will be to reduce the

six (6) month limitation period applied to actions of this

type to ninety (90) days. In reaching this conclusion, Pe-

titioner further speculates, without any support in the

record as to the facts of this case, that Defendants will

avoid service of process. Such speculations do not war-

rant review by the Court.

2. The Circuit Court Correctly Affirmed The Dis-

trict Court’s Dismissal In That Petitioner Failed

To Satisfy The Service Requirement Of = Ap-

plicable Statute Of Limitations.

Is Del Costello v. International Brotherhood of Team-

sters, supra, the Court held that the limitations period

contained in Section 10(b) of the National Labor Relations

Act, 29 U.S.C. §$160(b), governed hybrid breach of con-

tract/breach of duty of fair representation actions brought

against employers and Unions pursuant to 29 U.S.C. § 185.

(The asserted basis for jurisdiction in the instant case.)

In adopting this limitations period the Court noted that

The N.L.R.B. has consistently held that all breaches

of a union’s duty of fair representation are in fact

unfair labor practices (citations omitted). We have

twice declined to decide the correctness of the Board’s

position, and we need not address that question to-

day (footnote omitted). Even if not all breaches of

duty are unfair labor practices, however, the family

resemblance is undeniable and indeed there is sub-

stantial overlap.

Del Costello v. International Brotherhcod of 3

Teamsters, supra, at p. 2293.

Thus, noting the resemblance and overlap of district court

actions alleging breach of the duty and breach of contract,

9

and an unfair labor practice charge raising the same alle-

gation, the court adopted the limitations period found in

29 U.S.C. §160(b) relative to unfair labor practices.

Not only did the Court note that the similarity of the

rights asserted warranted adoption of the 10(b) limita-

tions period, but the policy considerations favoring rela-

tively rapid resolution of labor disgutes also warranted

adoption of the 10(b) requirements to an action such as

the one herein, Del Costello v. International Brotherhood

of Teamsters, supra, at p. 2292.

Section 10(b) expressly requires that a charge he

both filed and served within six (6) months of the accrual

of the action. As the District Court below noted, these

requirements were imposed “to bar litigation over past

events after records have been destroyed, witnesses have

gone elsewhere and recollection of the events in questions

have become dim and confused ... and of course to stab-

ilize existing bargaining relationships” citing Local Lodge

No. 1424 International Association of Machinists v. Nat-

ional Labor Relations Board, 362 U.S. 411 (1960) (quoting

H.R. Rep. No. 245, 80th Cong., Ist sess. 40 [1947]). As

the District Court below went on to note these special

considerations relative to labor relations would be ill served

if a party could toll the 10(b) limitations period by mere

filing. Indeed, it is for these very policy reasons that

“strict adherence to the Section 10(b) limitation” has been

required, National Labor Relations Board v. Preston H.

Haskell Company, 616 F.2d 136, 142 (CA 5, 1980). See

also, National Labor Relations Board v. Auto Warehous-

ers, Inc., 571 F.2d 860 (CA 5, 1978); National Labor Rela-

tions Board v. McCready & Sons, Inc., 482 F.2d 877 (CA

6, 1973).

10

In this latter regard, it is submitted that reversal of

the decision below would lead to the danger that parties

in the industrial setting would be uncertain as to the length

of time they must maintain records relative to each and

every grievance processed. Pursuant to the express word-

ing of Section 10(b) employers and unions now have the

stabilizing influence of a specific six (6) month limitation

period. Reversal of the decision below would undermine

that stability by allowing a litigant to toll the limitations

period by mere filing of a complaint within six (6) months

of the accrual of the action.

Contrary to the foregoing, Petitioner contends that

Section 10(b) was not intended to apply to judicial pro-

ceedings and that the service requirements only apply in

the administrative proceedings conducted by the National

Labor Relations Board. However, this argument ignores

the undeniable “family resemblance” and “substantial over-

lap” between breaches of the duty of fair representation

(raised by Petitioner’s action) and unfair labor practices,

Del Costello v. International Brotherhood of Teamsters,

supra, at 2293. In light of this resemblance and overlap,

the policy considerations requiring compliance with 29

U.S.C. §160(b) are applicable regardless of the forum.

To conclude otherwise would do little to foster the Fed-

eral policy favoring “the relatively rapid final resolution

of labor disputes” Del Costello v. International Brother-

hood of Teamsters, supra, at 2292.

In support of his Petition, Petitioner continues to

rely upon the general rule expressed in Caldwell v. Mar-

tin Marietta Corporation, 632 F.2d 1184 (5th Cir., 1980),

and similar cases, that the mere filing of a complaint tolls

the running of the statutes of limitations in an action

11

based on Federal law. However, as noted by the District

Court, that general rule governs only when the applicable

statute of limitations requires that an action be “brought”,

“commenced”, or “initiated” within a specified time. Un-

like those cases, the instant statute required that the ac-

tion be both filed (initiated, commenced) and served within

the limitations period. In this regard, the cases relied

upon by Petitioner do not involve express statutory re-

quirements (or policy considerations) of the type involved

herein.

The statute involved herein imposes very specific re-

quirements for bringing the action. Requirements well

rooted in the Federal policy relative to industrial stability.

Where a Federal statute imposes additional requirements

in order to commenec an action, the filing of a complaint

without satisfying those additional prerequisites cannot

toll the limitations period, Moores Federal! Practice (2nd

Ed.1983) 4 3.04 at pp. 3-12. For example, in United States

v. Matles, supra, the government had failed to file the

affidavit showing good cause required by 8 U.S.C. §1451(a)

in a denaturalization proceeding under the Immigration

and Nationality Act. Although the complaint had been

timely filed, the Court, rejecting the affidavit filed after

the expiration of the statute of limitations, ruled that,

“the affidavit must be filed with the complaint when the

proceedings °re instituted.” As the affidavit was a statu-

tory prerequisite to the proper commencement of an ac-

tion, the failure to file a timely affidavit could not be

cured by amendment, and the complaint was dismissed.

In the instant case, it cannot be denied that Petitioner

failed to satisfy the service requirements of Section 10(b)

and the Court below correctly dismissed the action.

| | |

12

CONCLUSION

On the basis of the foregoing the Petition for a Writ

of Certiorari herein should be denied.

Respectfully submitted,

/s/ Frank B. SHUSTER

Counsel of Record

116 East Howard Avenue

Decatur, Georgia 30030

(404) 373-5515

Attorney for Respondent

General Teamsters Local 528