Amicus Curiae Brief — Teamsters v. Terry

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IN THE AUG 18 1999

Supreme Court of the United Spare & seo

CLERK

OCTOBER TERM, 1989

No. 88-1719

— ee

CHAUFFEURS, TEAMSTERS AND HELPERS,

LOCAL No. 391,

Petitioner,

THOMAS C. TERRY, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE

OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

IN SUPPORT OF PETITIONER

Of Counsel: PETER G. NASH

STEPHEN A. BOKAT Counsel of Record

MonaA C. ZEIBERG DIXIE L. ATWATER

NATIONAL CHAMBER LITIGATION OGLETREE, DEAKINS, NASH,

CENTER, INC. SMOAK AND STEWART

1615 H Street, N.W. 2400 N Street, N.W.

Washington, D.C. 20062 5th Floor

(202) 463-5337 Washington, D.C. 20037

(202) 887-0855

Counsel for the Chamber of

Commerce of the United

States of America,

Amicus Curiae

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

Poo

TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE ...................

ty Fg ey | Bo) * | enn

ty Ng i

SE stesisittcisinitiicentanaisancincianntennvtincinneinaitsiinapieiiinans

The Seventh Amendment Does Not Require A

Jury Trial On The Labor Relations Issues Pre-

sented By Hybrid § 301/DFR Lawsuits .................

CONCLUSION

The Seventh Amendment Standards .................

Hybrid §301/DFR Actions Are More Anal-

ogous To Equitable Rather Than Legal Pro-

I iia tia eiecnitcnichidesiesicbdntnlesisutoiicchinicinbinianticelichidbedainins

I ei

. The Make Whole Relief In Hybrid § 301/DFR

Suits Is Equitable In Nature..............-...-2..00......

Labor Policy Considerations in Hybrid Cases

Counsel Against A Seventh Amendment Right..

Page

TABLE OF AUTHORITIES

Cases Page

Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975) wee-.-- 19, 20, 28

Allied Maintenance Co., 46 LA (BNA) 1014

sae 24

Armstrong Cork Co., 56 LA (BNA) 527 (1971)... 24

Atwood v. Pacific Maintenance Ass’n, 432 F. Supp.

491 (D. Or. 1977), aff'd on other grounds, 657

Py I I I cen ccnesttntnnesciounsnnnee 14

Auto Workers v. Hoosier Cardinal Corp., 383 U.S.

ERE ET Sc oe ee 17

Bowen v. United States Postal Service, 459 U.S.

he EEC 14, 18, 21, 27

Connell Construction Co. v. Plumbers & Steam-

fitters Local Union No. 100, 421 U.S. 616

ee 21

Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138

Ne —_ 13

Curtis v. Loether, 415 U.S. 189 (1974) —...... 11, 20

DelCostello v. Teamsters, 462 U.S. 151 (1983)....passim

Deringer v. Columbia Transportation Div., Ogle-

bay Norton Co., 866 F.2d 859 (6th Cir. 1989)... 13

Electrical Workers v. Foust, 442 U.S. 42 (1979) .... passim

Farmer v. Carpenters, 430 U.S. 290 (1977)... 22, 26

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953)... 16

Gamble-Skogmd, Inc.,71 LA (BNA) 1151 (1978)... 24

Garner v. Teamsters Union, 346 U.S. 485 (1953) .. 27

General Electric Corp., 69 LA (BNA) 1707

he a ee ee 24

Hecht Co. v. Bowles, 321 U.S. 321 (1944) 18, 23

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554

SS IC ESE aa 9, 10, 14, 25

Leach v. Pan American World Airways, 842 F.2d

fF Eee 13, 15, 16

8-M Company, 68 LA (BNA) 114 (1974) 24

Metropolitan Life Ins. Co. v. Massachusetts, 471

I RES A 7

Minnis v. UAW, 531 F.2d 850 (8th Cir. 1975). 13

Motor Coach Employees v. Lockridge, 403 U.S.

274 (1971) .. a 21, 22, 26

iii

TABLE OF AUTHORITIES—Continued

Page

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1

IE I I aa cee eae ENTE 7, 13, 20, 21

Republic Steel Corp. v. Maddox, 379 U.S. 650

ES RES EE Ar 9

Ross v. Bernhard, 396 U.S. 531 (1970) ...........-....- 11

San Diego Building Tradee Council v. Garmon,

EERE 26

Steele v. Louisville & Nashville R.R., 323 U.S. 192

EE SEO or aa ar 14

Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962).. 9

Tull v. United States, 481 U.S. 412 (1987) —......... 11

United-Paperworkers v. Misco, Inc., 484 U.S. ——,

es iceuimuspnsonmeninaae 8

United Parcel Service v. Mitchell, 451 U.S. 56

A Sl Eee passim

United Steelworkers v. American Mfg. Co., 363

RESET ae fas Ee ie 8,19

United Steelworkers v. Enterprise Wheei & Car

Corp., 8368 U.S. 698 (1960).................................. 8, 19, 23

United Steelworkers v. Warrior & Gulf Naviga-

tion Co., 8368 U.S. 574 (1960) ....................20..... 7, 8, 17,18

United Transportation Union, Local 74 v. Consoli-

dated Rail Corp., F.2d ——, 1989 WL

EE ee 13

Vaca v. Sipes, 386 U.S. 171 (1967) ..........0. passim

Wisconsin Department of Industry. Labor and

Human Relations v. Gould Inc., 475 U.S. 282

A OEE ES EE A ane 21

Statutes

Labor Management Relations Act, 29 U/S.C.

I aL 6

A ET | eee 8

§ 301 (a), 29 U.S.C. § 185 (a)... x

Miscellaneous

Cox, The Legal Nature of Collective Bargaining

Agreements, 57 Mich. L. Rev. 1 (1958)................ 14

1 J. Pomeroy, Equity Jurisprudence, § 109............. 23

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-1719

CHAUFFEURS, TEAMSTERS AND HELPERS,

LOCAL No. 391,

Vv.

THOMAS C. TERRY, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

Petitioner,

BRIEF AMICUS CURIAE

OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE:

The Chamber of Commerce of the United States of

America (“the Chamber”) is a federation consisting of

approximately 180,000 companies and several thousand

other organizations such as state and local chambers of

commerce and trade and professional associations. It is

the largest association of business and professional orga-

nizations in the United States.

A significant aspect of the Chamber’s activities is the

representation of the interests of its member-employers

1 This brief is filed with the written consent of the parties pur-

suant to Supreme Court Rule 36(2). Letters of consent are on file

with the Clerk of the Court.

in employiuent and labor relations matters before the

courts, the United States Congress, the Executive Branch

and independent regulatory agencies of the federal gov-

ernment. Accordingly, the Chamber has sought to ad-

vance those interests by filing amicus curiae briefs in

a wide spectrum of labor relations litigation before this

Court. E.g., Lingle v. Norge Division of Magic Chef,

Ine., 486 U.S. , 100 L. Ed. 2d 410 (1988) ; Wiscon-

sin Department of Industry, Labor and Human Relations

v. Gould Inc., 475 U.S. 282 (1986) ; Golden State Transit

Corp. v. Los Angeles, 475 U.S. 608 (1986); Allis Chal-

mers v. Lueck, 471 U.S. 202 (1985); Trans World Air-

lines v. Thurston, 469 U.S. 111 (1985).

The question presented in this case is whether em-

ployees have a Seventh Amendment right to a jury trial

in a “hybrid” Section 301/duty of fair representation

(“DFR”) case. This issue is of vital concern to the

Chamber and its members for three reasons. First, such

hybrid suits are often brought against employers, either

alone or as co-defendants with unions. In either situa-

tion, an employer can be liable only if the plaintiff-

employee can prevail on both of the determinative issues

in such cases—i.e., the union’s alleged breach of its duty

of fair representation and the employer’s alleged viola-

tion of the collective bargaining agreement. Thus, em-

ployers have an obvious stake in the question of whether

such issues must be tried to a jury.

—

Second, a hybrid §301/DFR action represents an

assault on the exclusive remedies and procedures em-

bodied in grievance-arbitration provisions of collective

bargaining agreements. As such, and because principles

of exclusivity and finality relating to contractual

grievance-arbitration procedures have served employers

and the nation well, employers have a legitimate interest

in resisting any encroachment on those principles.

Third, employers have an independent interest in the

manner in which hybrid § 301/DFR suits are handled

even when those suits are brought solely against unions.

Unions faced with the prospect of jury trials in hybrid

suits can justifiably expect higher litigation costs con-

nected with such actions. They might also expect that

juries may tend to favor the individual over the organiza-

tion and may not fully appreciate the range of reason-

ableness that must be accorded unions’ actions under our

federal labor policies. Thus, unions may become even

more reluctant to settle or abandon non-meritorious em-

ployee grievances short of arbitration because of the in-

creased costs and uncertainties that would be associated

with employee challenges to such decisions in hybrid

suits. As a result, grievance-arbitration provisions of

collective bargaining agreements will become substan-

tially more costly to employers.

In view of these considerations, it is clear that the

issue in this case is just as important to employers as

it is to the unions with whom they deal. Accordingly,

as a representative of many of those employers, the

Chamber submits this brief amicus curiae in support of

the Petitioner.

SUMMARY OF THE CASE

This hybrid § 301/DFR case was commenced in 1983

by a group of employees of McLean Trucking Company

(“McLean”) who had recently transferred to McLean’s

terminal in Winston-Salem, North Carolina. The em-

ployees alleged that McLean had violated its collective

bargaining agreement by manipulating the contractual

layoff and recall procedures in such a way as to give job

preference to other Winston-Salem employees. Pet. App.

33-35. In addition, the employees alleged that Teamsters

Local 391 (“the Union”) had acquiesced in McLean’s

violation of their contract rights and had failed to fairly

represent them in the contractual grievance and arbitra-

tion proceedings that resulted in a determination that

McLean did not violate the contract. Jd.

Based on these alleged facts, the employees contended

that the arbitration awards finding no contract violation

should be set aside and that they were entitled to injunc-

tive and monetary relief against both McLean and the

Union. Specifically, the complaint sought declaratory and

injunctive relief, reinstatemert. lost wages and benefits,

punitive damages, damages for emotional distress, and

attorney’s fees and costs. Jd. at 35. The claims for puni-

tive and emotional distress damages were subsequently

struck by the district court. Petition at 7.

As it stands before this Court, the instant case pre-

sents only one defendant and one issue—whether the

plaintiff-employees have a right to a jury trial on their

claims against the Union. McLean was voluntarily dis-

missed from the suit after the district court stayed all

proceedings as to McLean because the company filed

a bankruptcy petition. Petition at 6 n. 1. The jury trial

issue comes to the Court via the Fourth Circuit’s con-

clusion, on interlocutory appeal, that the Seventh Amend-

ment of the Constitution ensures the employees’ right to

a jury trial on their claims. Pet. App. at 32-52.

SUMMARY OF ARGUMENT

The history and nature of hybrid § 301/DFR actions

establishes a background supporting the inevitable con-

clusion that such actions are equitable rather than legal

in nature; that the remedies to be sought and awarded

are equitable; and that the care required of the trial

court in order to ensure that such actions do not disrupt

important labor policies is not likely to be found in the

jury room.

Hybrid § 301/DFR actious provide a limited means by-

which employees can avoid the finality and exclusivity

of the contractual grievance-arbitration procedures that

are so favored in our nation’s labor policy. Whether

viewed as unitary claims or separate § 301 and DFR

claims, this Court’s decisions suggest very strongly that

the closest analogies to hybrid suits are actions in equity

which do not require a jury trial under the Seventh

Amendment. Indeed, the Court itself has found such

actions to be most closely analogous to suits to vacate

arbitration awards and unfair labor practice proceedings

under the NLRA, both of which are equitable in nature.

Furthermore, the result is the same if the two claims

or issues in a hybrid suit are analyzed separately. While

the closest analog to a DFR claim is an unfair labor

practice proceeding, equitable actions against a fiduciary

for a breach of a trust relationship are the closest analog

in terms of the actions existing before the merger of law

and equity courts. The fair representation duty itself

obvicusly has both statutory and equitable origins, and

the union-employee relationship is much more closely

akin to a trustee-beneficiary relationship than it is to

an attorney-client relationship, in terms of both the

autonomy and discretion accorded the fiduciary and the

power of the employee-beneficiary to end or modify the

relationship. Finally, there are sound labor policy rea-

sons to view DFR claims as equitable in nature. The

range of discretion that must be accorded unions under

our nation’s labor policies dictates that their decision:

and actions be judged by the flexible standards that are

the hallmark of equity jurisdiction.

The contract claim in a hybrid § 301/DFR action is

also equitable in nature. Certainly it cannot be com-

pared to an ordinary breach of contract action at com-

mon law. Instead, since the contract claim either over-

rides or substitutes for an arbitration award, the claim

should be viewed as an equitable action to vacate an

arbitration award or, alternatively, its legal or equitable

nature should be determined by the nature of the arbitra-

tion proceeding for which it substitutes. The latter al-

ternative produces a firm onciusion that the claim is

equitable, because an arvitrator’s role in interpreting

collective bargaining agreements is of a quintessentially

equitable nature.

The remedies available in hybrid suits are also equita-

ble in nature. Certainly the fact that monetary relief

is sought does not ipso facto make the remedy “legal.”

Indeed, the monetary make-whole relief available on the

DFR and contract claims is the same kind of relief that

is available under Title VII of the Civil Rights Act and

the National Labor Relations Act, and the remedies

under those statutes are acknowledged to be equitaole.

Furthermore, the parties to collective bargaining agree-

ments containing arbitration provisions can be viewed as

having contemplated and agreed upon a regime of equi-

table rather than legal remedies for any contract viola-

tions. Certainly arbitrators possess and employ extraor-

dinarily broad flexibility and imagination in fashioning

remedies to meet and accommodate the parties’ respective

needs and interests. Because the contract claim in a

hybrid action is a substitute for this arbitral process, the

remedies available for such claims should be considered

correspondingly equitable in nature.

Finally, the labor policy implications of hybrid suits

counsel against jury trials. Unions must be accorded sub-

stantial discretion and latitude in grievance handling in

order for the private dispute resclution mechanisms to

remain viable. Thus, it is critical that DFR claims be

considered and decided with a keen appreciation for the

breadth of discretion accorded unions and the labor

policies that dictate that latitude. Judges rather than

jurors can best perform that function.

ARGUMENT

The Seventh Amendment Does Not Require A Jury Trial

On The Labor Relations Issues Presented By Hybrid

§ 301/DFR Lawsuits

This Court has never addressed the right to a jury

trial in private actions involving employee-union-manage-

ment relations governed by the National Labor Relations

Act (“NLRA”), 29 U.S.C. §§ 151, et seqg.2 Indeed, since

the NLRA preempts most lawsuits which implicate the

rights and obligations under that statute,* actions which

could possibly present the jury trial issue are limited.

However, since the Court has held that employees have

a right to pursue the type of hybrid § 301/DFR suits

this case represents (Vaca v. Sipes, 386 U.S. 171

(1967) ), it must now determine whether the Seventh

Amendment gives employees the right to have such claims

determined by a jury rather than the court.

Before turning to a discussion of the Court’s tradi-

tional Seventh Amendment tests, however, it is important

to consider the source and nature of hybrid § 301/DFR

actions in terms of their place in the fabric of our na-

tion’s labor laws. These actions derive from both the

rights and restrictions of the NLRA (or, as amended by

Taft-Hartley, the Labor Management Relations Aci

(“LMRA”)). The Court has long recognized that the

fundamental predicate of this statute is to foster a sys-

tem in which employees, through their collective efforts,

may come to the bargaining table and negotiate “a gen-

eralized code to govern .. . the whole employment rela-

tionship.” United Steelworkers v. Warrior & Gulf Nav-

igation Co., 363 U.S. 574, 578-579 (1960). The outcome

of that process—the collective bargaining agreement—

thus enjoys an important position in our federal policy.

Id. at 578 (“The present federal policy is to promote

industrial stabilization through the collective bargaining

agreement.” ).

2In NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 48

(1987), the Court did hold that there was no Seventh Amendment

right to jury trial in proceedings to enforce the NLRA.

3 See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724,

748-751 (1985) (describing the two NLRA preemption doctrines

which prohibit actions regulating conduct that is arguably pro-

hibited or protected by the NLRA, or conduct that Congress meant

to be unregulated by the NLRA),

The Court has also long recognized that the grievance-

arbitration provisions of such bargaining agreements are

particularly sacrosanct. Since the Steelworkers Trilogy

decisions in 1960, the Court has emphasized that the

express policy of the LMRA® “can be effectuated only

if the means chosen by the parties for settlement of their

differences under a collective bargaining agreement is

given full play.” American Mfg. Co., supra, 363 U.S.

at 566. Thus, for example, courts may not review the

merits of an arbitration award either directly (Enter-

prise Wheel & Car Corp., supra, 363 U.S. at 596) or

indirectly through the guise of judging the award under

-—seme nebulous public policy standard. United Paper-

workers v. Misco, Inc., 484 US.

(1987).

Consistent with this policy, the Court has made clear

that grievance-arbitration provisions can be given their

necessary protection only if parties are not permitted to

bypass those provisions when they are aveilable. Thus,

although Section 301 of the LMRA establishes federal

court jurisdiction over suits alleging violations of collec-

tive bargaining agreements,® the Court long ago held

that such suits could not displace the contractual griev-

ance-arbitration procedures:

, 98 L. Ed. 2d 286

*United Steelworkers v. American Mfg. Co., 363 U.S. 564

(1960) ; United Steelworkers v. Warrior & Gulf Navigation Co.,

363 U.S. 574 (1960); United Steelworkers v. Enterprise Wheel &

Car Corp., 363 U.S. 593 (1960).

5 Section 203(d) of the LMRA, 29 U.S.C. § 173(d), states:

Final adjustment by a method agreed upon by the parties is

declared to be the desirable method for settlement of grievance

disputes arising over the application and interpretation of an

existing collective-bargaining agreement. ...

® Section 301 (a) of the LMRA, 29 U.S.C. § 185(a), provides:

Suits for violation of contracts between an employer and a

labor organization representing employees . . . may be brought

in any district court of the United States having jurisdiction

of the parties. ...

Congress has expressly approved contract grievance

procedures as a preferred method for settling dis-

putes and stabilizing the “common law” of the

plant... . Union interest in prosecuting employee

grievances is clear. ... Employer interests, for their

part, are served by limiting the choice of remedies

available to aggrieved employees. .. .

A contrary rule which would permit an individual

employee to completely sidestep available grievance

procedures in favor of a lawsuit has little to com-

mend it. In addition to cutting across the interests

already mentioned, it would deprive employer and

union of the ability to establish a uniform and ex-

clusive method for orderly settlement of employee

grievances. If a grievance procedure cannot be made

exclusive, it loses much of its desirability as a

method of settlement. A rule creating such a situa-

tion “would inevitably exert a disruptive influence

upon both the negotiation and administration of col-

lective agreements.”

Republic Steel Corp. v. Maddox, 379 U.S. 650, 653

(1965), quoting Teamsters v. Lucas Flour, 369 U.S. 95,

103 (1962).

Hybrid § 301/DFR actions provide a limited excep-

tion to this rule which otherwise forecloses resort to the

courts when a collective bargaining agreement provides

for exclusive grievance-arbitration provisions. In Vaca

v. Sipes, 386 U.S. 171 (1967), the Court held that an

employee would be permitted to pursue his bargaining

agreement rights in court, despite exclusive contract pro-

cedures, if the employee could prove that the union had-

breached its duty of fair representation—i.e., had acted

in an arbitrary, discriminatory or bad faith manner in

failing to process the employee’s contractual grievance.

386 U.S. at 190-191. Thereafter, in Hines v. Anchor

Motor Freight, 424 U.S. 554 (1976), the Court concluded

that the same rule should apply even if there had actually

been a final and binding arbitration award denying the

employee’s grievance, so long as the employee could show

that the union’s breach of its duty “seriously under-

mine[d] the integrity of the arbitral process.” 424 U.S.

at 567.

Hence, from these precedents, the hybrid § 301/DFR

suit had its genesis. In such suits, employees may sue

either their employer or their union, or both, but in

either situation the elements of the suit are the same’

and the employee may obtain remedies that would other-

wise be foreclosed by the final and exclusive contractual

grievance-arbitration provisions. .We show below that

the nature of the rights and remedies in these lawsuits,

as well as federal policy considerations, compel the con-

clusion that the Seventh Amendment does not require

a jury trial in such actions.

A. The Seventh Amendment Standards

The Seventh Amendment to the United States Consti-

tution provides that in “[s]uits at common law, where

the value in controversy shall exceed twenty dollars, the

right to trial by jury shall be preserved.” The Seventh

Amendment right attaches not merely to claims the com-

7 Although employees typically sue both union and employer in

hybrid §301/DFR suits, employees are free to sue only one of

those parties. DelCostello v. Teamsters, 462 U.S. 151, 165 (1983).

However, the employee may not obtain relief against either party,

whether sued singly or collectively, unless he or she can prove both

elements of the hybrid claim—i.e., the union’s DFR breach and the

employer’s violation of the bargaining agreement. /d.

Thus, every hybrid action contains the same elements no matter

who is being sued. While these elements might be termed either

“claims” or “issues” depending upon whether employer and union

are sued collectively or singly, this brief usually refers to the two

“claims” in a hybrid action because typically both parties are sued.

However, it should be understood that even if only one party is

sued, every hybrid action against an employer contains a “DFR

claim” as well as a “contract claim” and, by the same token, every

hybrid suit against a union contains a “contract claim” as well as

a “DFR claim.”

mon law actually recognized, but also to new causes of

action in which legal, as opposed to equitable, rights and

remedies are to be determined. Ross v. Bernhard, 396

U.S. 531, 5383 (1970), citing Parsons v. Bedford, 3 Pet.

433, 447 (1830). See also Curtis v. Loether, 415 U.S.

189, 194 (1974) (Seventh Amendment applies to actions

enforcing statutory rights if the statute creates legal,

rather than equitable, rights and remedies enforceable

in ordinary courts of law).

Thus, the Seventh Amendment question turns on an

historical analysis of whether the issues to be decided

would have been considered in courts of equity or courts

of law prior to the merger of law and equity. Jd. This

determination requires a two-fold analysis:

First, we compare the . . . action to 18th-century

actions brought in the courts of England prior to

the merger of the courts of law and equity. ... Sec-

ond, we examine the remedy sought and determine

whether it is legal or equitable in nature.

Tull v. United States, 481 U.S. 412, 417-418 (1987).

Application of these standards leads to the conclusion

that a jury trial is not required for hybrid § 301/DFR

actions.

B. Hybrid § 301/DFR Actions Are More Analogous To

Equitable Rather Than Legal Proceedings

The first prong of the Seventh Amendment test re-

quires a court to assess whether § 301/DFR proceedings

are more like pre-merger legal actions or pre-merger

equitable actions. This Court itself has twice examined

the nature of these actions vis-a-vis their common law

or statutory counterparts. United Parcel Service v. Mit-

chell, 451 U.S. 56 (1981); DelCostello v. Teamsters,

supra.* The Court’s analysis in both cases suggests very

8 While this inquiry was undertaken for purposes of determining

the appropriate statute of limitations for hybrid actions, such a

strongly that, whether viewed as a unitary claim or as

separate § 301 and DFR claims, the closest analogies to

hybrid suits are actions in equity.

In both Mitchell and DelCostello, the Court recognized

that, whether a hybrid suit is brought against an em-

ployer or a union, the suit is an “amalgam,” based on

both a Section 301 action for bargaining agreement

violations and an alleged breach of the duty of fair rep-

resentation implied under the NLRA. DelCostello, 462

U.S. at- 158 n. 12; see also Mitchell, 451 U.S. at 61-63.

Although “as a formal matter” two causes of action are

present, “the two claims are inextricably interdependent.”

DeiCostello, 462 U.S. at 164.

In Mitchell, the Court soundly rejected any suggestion

that this “amalgam” suit against an employer could be

likened to an ordinary breach of contract action. 451

U.S. at 61-62. Instead, because the suit amounts to a

direct challenge to the private settlement of disputes

under a collective bargaining agreement, the Court con-

cluded that the suit is “more analogous to an action to

vacate an arbitration award than to a straight contract

action.” Id. at 62.

The Court adhered to this conclusion in DelCostello,

which involved the appropriate statute of limitations in

a hybrid action against a union. 462 U.S. at 165. Never-

theless, the Court concluded that, as to the union, a

hybrid suit was more akin to an unfair labor practice

under the NLRA. 462 U.S. at 169-172. The Court had

previously observed in Mitchell that a DFR claim “is

more a creature of ‘labor law’ . . . than it is of general

eentract law” (451 U.S. at 63), and in DelCostello it

confirmed that conclusion.

determination normally involves identification and use of the stat-

ute of limitations of the most closely analogous state cause of ac-

tion. DelCostello, 462 U.S. at 158.

In short, the Court’s previous decisions dealing with

- hybrid § 301/DFR lawsuits viewed the closest analogy

for such suits as either an action to vacate an arbitra-

tion award and/or an unfair labor practice proceeding

under the NLRA. See also Leach v. Pan American World

Airways, 842 F.2d 285 (11th Cir. 1988) (hybrid § 301/

DFR actions are best analogized to suits to vacate arbi-

tration awards or to unfair labor practice proceedings

for purposes of Seventh Amendment analysis). Since

both of those latter actions are clearly equitable in na-

ture,® jury trials should not be available for hybrid suits

under the Seventh Amendment. Leach, supra.

Moreover, this conclusion is no different if one focuses

on the nature of the underlying claims and issues in hy-

brid actions, as some cases have suggested must be done

under Seventh Amendment analysis.’° In this regard,

it is noteworthy that courts considering the nature of

underlying claims in hybrid suits have reached sharply

conflicting results—some finding that the contract claim

is legal but the DFR claim equitable, some finding the

DFR claim legal and the contract claim equitable, and

some finding both claims legal or both claims equitable."

® Leach v. Pan American World Airways, supra, 842 F.2d at 288

n. 5, 290, and cases cited therein. This Court has itself determined

that unfair labor practice proceedings and their remedies are equi-

table in nature. NLRB v. Jones & Laughlin Steel, supra, 301 U.S.

at 48-49.

10 See, e.g., Deringer v. Columbia Transportation Div., Oglebay

Norton Co., 866 F.2d 859, 862 (6th Cir. 1989).

11 For example, Leach found that both claims are equitable,

whereas the Fifth and Eighth Circuits, prior to this Court’s

Mitchell and DelCostello decisions, concluded that both claims are

legal. Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138 (5th Cir.

1979); Minnis v. UAW, 531 F.2d 850 (8th Cir. 1975). The Sixth

Circuit has suggested that contract claims in a hybrid suit are

equitable in nature, whereas the DFR claims are legal. United

Transportation Union, Local 74 v. Consolidated Rail Corp.,

F.2d , 1989 WL 83845, p. 6 (6th Cir. 1989) (“We do not find

persuasive the argument that the equitable nature of claims against

The Chamber submits, however, that both aspects of the

hybrid action are equitable in nature.

1. The DFR Claim

The duty of fair representation claim involved in a

hybrid suit clearly has equitable origins. Although the

closest specific analog to a DFR claim is obviously the

NLRA unfair labor practice that the Court found com-

pelling in DelCostello, the fair representation duty aris-

ing under that statute itself has roots in equity. First

recognized in 1944, the duty derives from the theory that

the exclusive representative status granted unions under

the NLRA carries with it the responsibility to discharge

that representation in a faithful and non-arbitrary man-

ner. Steele v. Louisville & Nashville R.R., 323 U.S. 192,

202 (1944) (recognizing that a union’s duty arises not

only from statutory exclusive representative status, but

also from the “principle of general application that the

exercise of a granted power to act in behalf of others in-

volves the assumption toward them of a duty to exercise

the power in their interest and behalf.”). See also Hines,

424 U.S. at 564; Bowen v. United States Postal Service,

459 U.S. 212, 226 (1983).

Given these underpinnings, the duty of fair representa-

tion plainly bears a striking resemblance to the fiduciary

duty in the nature of a trust relationship which has his-

torically been viewed as a creature of equity. See, e.g.,

Atwood v. Pacific Maintenance Ass’n, 432 F. Supp. 491,

497 (D. Or. 1977), aff'd on other grounds, 657 F.2d

1055 (9th Cir. 1981) (no right to jury trial because

breach of DFR similar to breach of fiduciary duty en-

forceable in equity). See also Cox, The Legal Nature of

Collective Bargaining Agreements, 57 Mich. L. Rev. 1,

21 (1958) (The relationship created by a collective bar-

gaining agreement may be “compared to a trust with a

an employer compels us to view the derivative claims against a

union also to be equitable. ...”).

chose in action as the res . . .{and in which] the bar-

gaining representative, which is subject to fiduciary ob-

ligations, holds the employer’s promises in trust for the

benefit of the individuals,” ) .”

Moreover, the Chamber submits that the trustee anal-

ogy is considerably more apt than the attorney-client an-

alogy that has been favored by some members of the

Court. See Mitchell, 451 U.S. at 74 (Stevens, J., con-

curring and dissenting) (DFR claim similar to legal

malpractice) ; DelCostello, 462 U.S. at 175 (O’Connor,

J., dissenting) (same). In an attorney-client relation-

ship the client maintains ultimate and complete control

over all of his or her rights, can direct the attorney

which rights should be asserted and how, and can walk

away from the relationship should disagreement or dis-

satisfaction arise.

The union-employee relationship, on the other hand,

like the trustee-beneficiary relationship, is entirely dif-

ferent. In these latter relationships, the interests of the

employee and beneficiary are placed wholly in the power

of the fiduciary, who exercises tremendous autonomy and

discretion in how he or she represents those interests.

If the employee and trust beneficiary are dissatisfied

with how their interests are represented, they are not

free simply to reclaim their interests and sever the re-

12 Although the Eleventh Circuit did not expressly analogize the

DFR claim to a breach of a fiduciary obligation in Leach, the

court recognized the equitable roots of the DFR doctrine:

[W]e note that from their inception [DFR claims] have em-

bodied certain traditional notions associated with equity juris-

diction. Equity has been defined as “justice, that is, as ascer-

tained by natural reason or ethical insight, but independent of

the formulated body of law.”

842 F.2d at 290. Noting the Steele Court’s explication of the deriva-

tion of the fair representation duty, the Eleventh Circuit concluded

that “the action involves rights and remedies of the sort tradi-

tionally enforced in equity.” Id., quoting Pernell v. Southall Realty,

416 U.S. 363, 375 (1974).

lationship. Instead, they are limited to attacking the

manner in which the fiduciary has exercised his or her

discretion. And since the exercise of such discretion can-

not be judged by any hard and fast legal rules or pre-

cepts, it is necessarily judged in equity. In short, the

fair representation duty in a union-employee relation-

ship is, quintessentially, in the nature of a trust.

Finally, there are sound labor policy reasons to view

the DFR claims as equitable in nature and determinable

by courts rather than juries. As more fully discussed

in Section D, infra, this Court has often emphasized that

our national labor policy requires that unions be accorded

substantial discretion and flexibility in their representa-

tion activities. E.g., Vaca, 386 U.S. at 190-192; Mitchell,

451 U.S. at 66, n. 2 (Stewart, J., concurring), quoting

Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953)

(“Necessarily [a] wide range of reasonableness must be

allowed a statutory bargaining representative in serving

the unit it represents.”). The limits of that discretion

will have to be judged in the myriad of factual circum-

stances in which DFR claims arise, and will have to be

determined with an eye toward the federal labor policy

that protects that discretion. These judgments, the

Chamber submits, will necessarily be made on the basis

of “natural reason or ethical insight . . . independent of

the formulated body of law.” Leach, supra, 842 F.2d at

290.

2. The Contract Claim v

The Chamber submits that the contract claim involved

in a hybrid § 301/DFR action is also of an equitable

nature. Although the Respondents will undoubtedlv con-

tend that such claims are analogous to common law

breach of contract claims which are legal in nature, this

Court’s decisions simply do not permit such a simplistic

approach to claims involving collective bargaining agree-

ments which contain binding grievance-arbitration pro-

visions.*

First, in both Mitchell and DelCostelio this Court

specifically rejected the contention that the contract claim

in a hybrid action could be analogized to an ordinary

breach of contract action. Because binding grievance-

arbitration provisions stand between employees and judi-

cial relief, the suit is “not a straightforward breach-of-

contract suit under § 301, as was Hoosier, but a hybrid

§ 301/fair representation claim, amounting to a ‘direct

challenge to the private settlement of disputes under [the

collective bargaining agreement].’” DelCostello, 462 U.S.

at 165, quoting Mitchell, 451 U.S. at 66 (Stewart, J.,

concurring).

Equally important, moreover, and aside from the neces-

sity of effectively vacating a binding contract resolution,

the contract claim, standing alone, should be viewed as

involving equitable rights and remedies where the con-

tract provides for binding-arbitration. In this regard,

the Court’s decisions make clear that a collective bargain-

ing agreement cannot be viewed as an ordinary common

law contract:

[The collective bargaining agreement] is more than

a contract; it is a generalized code to govern a

myriad of cases which the draftsmen cannot wholly

anticipate. ... The collective agreement covers the

whole employment relationship. It calls into being a

new common law—the common law of a particular

industry or a particular plant.

United Steelworkers v. Warrior & Gulf, 363 U.S. at 578-

579.

13 We realize that this Court itself analogized a Section 301 suit

to common law breach of contract actions in Auto Workers v.

Hoosier Cardinal Corp., 383 U.S. 696, 705 (1966). However, the

collective bargaining agreement involved in Hoosier did not contain

an arbitration provision and, as shown in the text following this

footnote, that analogy ia not appropriate when an ag-eement pro-

vides for arbitration.

This point was more recently reiterated in Bowen v.

United States Postal Service, where the Court rejected a

union argument regarding its liability in a hybrid suit

because, in the Court’s view, the argument

treats the relationship between the employer and

employee, created by the collective-bargainiug agree-

ment, as if it were a simple contract of hire gov-

erned by traditional common-law principles. .. .

Rather, it is an agreement creating relationships

and interests under the federal common law of labor

policy.

459 U.S. at 220 (footnote omitted).

Aside from the nature of the collective agreement

itself, it is also well-recognized that arbitrators play a

unique role in administering the bargaining agreement—

a role which, the Chamber submits, is the essence of the

Chancellor dispensing equity. Indeed, the Court itself

has deseribed the role of the Chancellor and the role of

the arbitrator in strikingly similar terms. For example,

in Hecht Co. v. Bowles, 321 U.S. 321 (1944), the Court

described the Chancellor’s role as follows:

The essence of equity jurisdiction has been the

power of the Chancellor to do equity and to mould

each decree to the necessities of the particular case.

Flexibility rather than rigidity has distinguished it.

The qualities of mercy and practicality have made

equity the instrument for nice adjustment and rec-

onciliation between the public interest and private

needs as well as between competing private claims.

321 U.S. at 329-330. A similar description of the arbi-

trator’s role was offered in Warrior & Gulf:

A collective bargaining agreement is an effort to

erect a system of industrial self-government. .. .

[It is] “a compilation of diverse provisions: some

provide objective criteria almost automatically ap-

plicable; some provide more or less specific stand-

ards which require reason and judgment in their

application; and some do little more than leave prob-

lems to future consideration with an expression of

hope and good faith.” .. . Arbitration is the means

of solving the unforeseeable by molding a system of

private law for all the problems -vhich may arise and

to provide for their solution in a way which will

generally accord with the variant needs and desires of

the parties.

nd * * *

The labor arbitrator performs functions which are

not normal to the courts. ... The parties expect

that his judgment of a particular grievance will re-

flect not only what the contract says but...

such factors as the effect upon productivity of a

particular result, its consequences to the morale of

the shop, his judgment whether tensions will be

heightened or diminished.

363 U.S. at 580-582 (citations omitted). See also United

Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.

at 597 (“When an arbitrator is commissioned to interpret

and apply the collective bargaining agreement, he is to

bring his informed judgment to bear in order to reach

a fair solution to the problem.”).

These passages demonstrate that an arbitrator’s role is

one that is closely akin to that of equity jurisdiction,

which “eschews mechanical rules . . . [and] depends on

flexibility.” Albemarie Paper Co. v. Moody, 422 US.

405, 417 (1975), quoting Holmberg v. Armbrecht, 327

U.S. 392, 396 (1946). Just as a collective bargaining

agreement can be viewed as “the charter instrument of

a system of industrial self-government” (Brennan, J.,

concurring, in Steelworkers Trilogy, 363 U.S. at 570),

the arbitrator can be viewed as the Chancellor who sits

to fill in the interstices of the written charter and to

adjust the relations and actions of the parties as the

charter, fairness and equity require.

Seen in this light, employers and unions who enter

into collective bargaining agreements with arbitration

provisions have, in a very real sense, committed their

rights and obligations under those agreements to a deter-

mination in equity. Absent a rule in which all contract

claims in hybrid § 301/DFR actions are remanded for

arbitration—a rule this Court rejected in Vaca, 386 U.S.

at 196—the only remaining alternative consistent with

the parties’ intent and contractual understandings is a

determination that alleged violations of the agreement

should be determined in equity courts.

C. The Make-Whole Relief In Hybrid § 301/DFR Suits

Is Equitable In Nature

The second factor of the Seventh Amendment analysis

requires that a court consider the nature of the remedies

sought. The Chamber submits that the relief available

in this and other hybrid § 301/DFR actions is equitable

make-whole relief.

First, the fact that employees in hybrid suits are

seeking monetary relief does not automatically mean they

are seeking “legal” relief. See Curtis v. Loether, supra,

415 U.S. at 196 (award of monetary relief need not be

“legal” relief). Indeed, this Court has specifically held

that the make-whole relief provided by Title VII of

the Civil Rights Act of 1964 is equitable in nature,

including the kind of backpay and payment for lost

benefits that is typically at issue in hybrid § 301/DFR

cases. Albemarle Paper Co. v. Moody, supra, 422 U.S.

at 415-419. So too is the similar make-whole relief under

the NLRA, on which Title VII’s remedial provisions were

modeled. NLRB v. Jones & Laughlin Steel, supra, 301

U.S. at 48. In so holding, the Court has expressly recog-

nized “the ‘historic power of equity’ to award lost wages.”

Albemarle Paper Co., 422 U.S. at 416.

These cases are pertinent here because the Court has

made clear that the purpose of monetary relief for DFR

claims in hybrid actions is “to make the injured employee

whole.” Electrical Workers v. Foust, 442 U.S. 42, 49

(1979). See also Bowen v. United States Postal Service,

459 U.S. at 222. Given the strong “family resemblance”

between DFR claims in hybrid suits and NLRA unfair

lebor practices involving fair representation (Del-

Costello, 462 U.S. at 170), the make-whole relief available

in private DFR actions should be similar to the make-

whole relief available under the NLRA—relief that the

Jones & Laughlin Steel case held to be equitable in nature.

Indeed, the Foust Court recognized that the remedies

available in DFR suits should be determined by con-

siderations that also govern the statutory remedial

scheme. In rejecting the availability of punitive damages

in an analogous DFR case under the Railway Labor Act,

the Court stated:

Congress has not specified what remedies are avail-

able in these [DFR] suits. Our function, therefore,

is to implement a remedial scheme that will best ef-

fectuate the purpose of the Railway Labor Act, rec-

ognizing that the overarching legislative goal is to

facilitate collective bargaining and to achieve indus-

trial peace.

442 U.S. at 47 (footnote omitted).

Thus, although Vaca establishes that the NLRA does

not preempt private DFR svits, the Court should be

guided by the NLRA remedial scheme in determining the

nature of the remedies available in private DFR actions.

And this is particularly true inasmuch as the Court has

made clear that the preemption doctrine emanates in part

from the fact that the “range and nature of the remedies

that are and are not available’ under the NLRA are

integral to the scheme of collective bargaining that

statute was intended to foster. Motor Coach Employees

v. Lockridge, 403 U.S. 274, 287 (1971). See also Wis-

consin Department of Industry, Labor & Human Rela-

tions v. Gould Inc., 475 U.S. 282, 287 (1986); Connell

Construction Co. v. Plumbers & Steamfitters Local Union

No. 100, 421 U.S. 616, 635 (1975)."* As a consequence,

unless the remedies available in private DFR suits are

carefully controlled and similar to NLRA remedies, they

might run afoul of this Court’s preemption principles.

Cf. Motor Coach Employees v. Lockridge, 403 U.S. at

301 (noting that the Congressional policies the preemp-

tion doctrine seeks to promote will be “swallowed up”

unless courts considering DFR claims strictly maintain

the distinction between unions’ honest, mistaken conduct,

on the one hand, and deliberate and severely hostile treat-

ment on the other) ; Farmer v. Carpenters, 430 U.S. 290,

304-306 (1977) (NLRA does not totally preempt em-

ployee’s tort claim against union for intentional infliction

of emotional distress, but claim is preempted insofar as

it is premised on acts of discrimination covered by

NLRA, and furthermore, court must assure damages

awarded are not excessive).

In short, the DFR claims in a hybrid suit parallel the

DFR claims in statutory unfair labor practice proceed-

ings, and both common sense and national labor policy

suggest that the remedies for breach of that duty should

be the same. Accordingly, the remedies for hybrid DFR

claims should be considered equitable for purposes of

Seventh Amendment analysis.

The same conclusion should be reached regarding the

remedies for alleged violations of the collective bargain-

ing agreement in hybrid actions. First, such actions al-

14 Nor is this consideration made less compelling by the Foust

Court’s indication that the “compensation principle” was one of the

reasons Vaca held private DFR claims not to be preempted. See

Foust, 442 U.S. at 49 n. 12. The portions of the Vaca decision cited

_by_ the Court did not express concern that the NLRA could not

provide the necessary make-whole relief. Rather, the Court’s con-

cern was that the NLRB’s General Counsel might refuse to issue

DFR complaints in cases where the employee injury was insub-

stantial, and that such a determination would be within the Gen-

eral Counsel’s unreviewable discretion. See Vaca, 386 U.S. at 182-

183 and n. 8.

ways effectively require vacating arbitration awards or

otherwise relieving employees from the finality and ex-

clusivity attaching to the contractual grievance procedure.

As pointed out in Section B, supra, such remedies are

equitable in nature.

Second, the monetary relief available on such claims—

backpay and restoration of benefits—can be viewed as

equitable for the same reasons that such remedies are

equitable in Title VII and NLRA proceedings.

Finally, the parties to collective bargaining agreements

containing arbitration provisions can be viewed as having

agreed to the imposition of equitable remedies for the

same reasons they can be viewed as having agreed to

have their contract claims determined in equity proceed-

ings. See Section B, supra. In this regard, “[t]he dis-

tinguishing characteristics of legal remedies are their

uniformity, their unchangeableness or fixedness, their

lack of adaption to circumstances, and the technical rules

which govern their use.” 1 J. Pomeroy, Equity Juris-

prudence, § 109, at 140. Equitable remedies, by contrast,

are highly flexible and adapt to the circumstances. Thus,

“Ce]quity eschews mechanical rules . . . [and] depends on

flexibility . . .,” and an equitable remedial scheme “im-

plicitly recognizes that there may be cases calling for one

remedy but not another. . . .” Albemarle Paper Co. v.

Moody, 422 U.S. at 415-416, 417 (citations and footnotes

omitted). See also Hecht Co. v. Bowles, supra.

It is clear from these passages that parties who have

agreed to contractual arbitration provisions contemplate

a regime of equitable rather than legal remedies:

When an arbitrator is commissioned to interpret

and apply the collective bargaining agreement, he

is to bring his informed judgment to bear in order

to reach a fair solution of a problem. This is espe-

cially true when it comes to formulating remedies.

There the need is for flexibility in meeting a wide

variety of situations.

United Steelworkers v. Enterprise Wheel & Car Corp.,

363 U.S. at 597.

Moreover, anyone engaged in the arbitral process can-

not but be struck by the flexibility that arbitrators in

fact bring to bear in order to provide remedies that “do

justice” in the particular circumstances of any given

grievance. For example, arbitrators routinely convert

employee discharges into disciplinary suspensions without

pay when they believe that the discharge penalty is too

severe under all the circumstances (see, e.g., General

Electric Corp., 69 LA (BNA) 707 (Arbitrator Jedel,

1977)), and they often impose far more imaginative

remedies in order to protect the parties’ respective and

legitimate interests in widely varying circumstances. See,

e.g., Gamble-Skogmd, Inc., 71 LA (BNA) 1151, 1154

(Arbitrator Weiss, 1978) (where both company and

union violated no-strike/no-lockout clause, employees or-

dered reinstated but without pay because “their hands

are not that clean,” and employees ordered to make up

work time lost due to strike by working overtime at

straight-time rates insofar as permissible under Fair

Labor Standards Act); 3-M Company, 68 LA (BNA)

114, 118 (Arbitrator Purdom, 1974) (discharged em-

ployee reinstated without backpay, but company ordered

to make two months’ backpay available for grievant to

use for purposes of attending remedial educational pro-

gram; if grievant does not attend educational program,

union and employer shall decide how best to use funds

to advance educational opportunities of unit employees) ;

Armstrong Cork Co., 56 LA (BNA) 527, 530 (Arbitrator

Wolf, 1971) (discharged alcoholic employee reinstated

without backpay, but for six months must furnish per-

sonnel director evidence that he is regularly attending

Alcoholics Anonymous); Allied Maintenance Co., 46 LA

(BNA) 1014, 1018 (Arbitrator Sembower, 1966) (em-

ployer must reinstate discharged grievant without back-

pay if and when grievant can supply certificate from

psychiatrist indicating that he has undergone diagnosis

and effective treatment).

Thus, in a very real sense, parties agreeing to binding

arbitration provisions contemplate that remedies for vio-

lating the bargaining agreement will be determined by

the arbitrator’s application of principles developed in the

courts of equity. As a consequence, remedies in the

judicial proceedings that displace arbitration in hybrid

§ 301/DFR suits should likewise be determined in equity.

D. Labor Policy Considerations in Hybrid Cases Counsel

Against a Seventh Amendment Right

The Chamber submits that jury determination of DFR

claims poses a significant risk to the national labor

policies underlying the NLRA. Time and again this

Court has emphasized that those policies require that

unions be given substantial latitude and discretion in

dealing with employee grievances. E.g., Vaca, 386 U.S.

at 191-193; Hines, 424 U.S. at 563-564; Lockridge, 403

U.S. at 301; Foust, 442 U.S. at 48-52. As the Court

observed in Foust:

[U}mnion discretion is essential to the proper func-

tioning of the collective-bargaining system. Union

supervision of employee complaini< promotes settle-

ments, avoids processing of frivolous claims, and

strengthens the employer’s confidence in the union.

Without these screening and settlement procedures,

. the costs of private dispute resolution could

ultimately render the system impracticable.

442 U.S. at 51, citing Vaca, 386 U.S. at 191-193. In

view of these concerns, the Court has made clear that

union DFR liability must be limited to situations in

which the union’s conduct is “arbitrary, discriminatory

or in bad faith,” as opposed to merely negligent or in-

attentive. Vaca, 386 U.S. at 190.

As stated by the concurring Justices urging preemption

in Vaca, however, in applying these standards one is

concerned with the subtleties of a union’s statu-

tory duty faithfully to represent employees in the

unit. ... The nuances of union-employee and union-

employer relationships are infinite and consequential,

particularly when the issue is as amorphous as

whether the union was proved guilty of “arbitrary

or bad-faith conduct” which the Court states as the

standard applicable here.

386 U.S. at 202-203. Based on this assessment, the con-

curring Justices concluded that “judgments as to the

metes and bounds of the reciprocal duties involved in the

relationship between the union and the employee... . [are]

precisely and especially the kind of judgment(s] that

Congress intended to entrust to the [NLRB]... .” ld.

at 202.

The Vaca majority refused to find the NLRB’s jurisdic-

tion exclusive, but the concurring Justices’ observations

nevertheless remain relevant. to the questions before the

Court. While judges might be expected to make DFR

determinations with a keen eye toward. national labor

policy and the latitude to be accorded unions, juries, even

when properly instructed, may not fully appreciate the

wide range of reasonableness that attaches to unions’

actions under the nation’s labor laws. As a consequence,

committing such determinations to juries might preju-

dice the courts’ ability to “strictly maintain” the “dis-

15 Vaca held that DFR claims are not preempted by the NLRA

under this Court’s Garmon doctrine, which normally preempts ac-

tions regulating conduct that is arguably protected or arguably

prohibited by the NLRA. San Diego Building Trades Council v.

Garmon, 359 U.S. 236 (1959). Nevertheless, the Court’s refusal to

find such claims preempted does not mean that the concerns and

principles animating the preemption doctrine are entirely irrele-

vant. Thus, although hybrid DFR claims can obviously proceed,

the Court should fashion remedies and procedures relating to such

claims that will minimize the risk of violence to national labor

policies underlying the NLRA. See Motor Coach Employees v. Lock-

ridge and Farmer v. Carpenters, as cited supra at p. 22.

tinction . . . between honest, mistaken conduct, on the

one hand, and severely hostile and irrational treatment, on

the other... .” Lockridge, 403 U.S. at 301. If that is

the case, then provision of a jury trial on DFR claims

might “swallow up” the “congressional policies Garmon

seeks to promote” (id.)—i.e., the enhancement of col-

lective bargaining through “uniform application of .. .

substantive rules and [avoidance of the] diversities and

conflicts likely to result from a variety of local pro-

cedures and attitudes toward labor controversies. . . .”

Garner v. Teamsters Union, 345 U.S. 485, 490 (1953).

Finally, the possibility that juries may consider DFR

claims withovt a proper appreciation for the dictates of

national labor policy will also inject increased uncertainty

into the litigation of DFR claims. This fact, coupled

with the increased litigation costs associated with jury

trials, could curtail the union discretion that this Court

has found essential to the proper functioning of the col-

lective bargaining system established by Congress. As

the Court observed in Foust, in rejecting an employee’s

claim for punitive damages in a DFR suit:

[T]he threat of punitive damages could disrupt the

responsible decisionmaking essential to peaceful labor

relations. In order to protect against a future puni-

tive award of unforeseeable magnitude, unions might

feel compelled to process frivolous claims or resist

fair settlements.

442 U.S. at 51-52. See also, e.g., Bowen v. United States

Postal Service, 459 U.S. at 241-242 (Justices White,

Marshall, Blackmun and Rehnquist, concurring in part

and dissenting in part) (“[{S]Jince the practical conse-

quence of today’s [backpay apportionment] is that unions

will take many unmeritorious grievances to arbitration

simply to avoid exposure to the new breach-of-duty lia-

bility, the Court’s rule actually impairs the ability of the

grievance machinery to provide for orderly dispute reso-

lution.”). The same would be true, the Chamber sub-

mits, if jury trials are permitted on hybrid DFR claims.

In sum, labor policy considerations counsel great cir-

cumspection in determining the rights and remedies to be

available under hybrid § 301/DFR suits, as well as great

circumspection in committing the issues to a jury. Ac-

cordingly, the Court should determine that the rights and

remedies are equitable in nature and that they are to be

tried to the courts.

CONCLUSION

For the foregoing reasons, the Chamber respectfully

submits that the Seventh Amendment of the United States

Constitution does not require a trial by jury in hybrid

§ 301/DFR lawsuits.

Respectfully submitted,