Opposition Brief — United Steelworkers v. Cherokee Electric Cooperative

No. 87-1274 2)

IN THE

Supreme Court Of The Mnited States

October Term, 1987

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC;

UNITED STEELWORKERS OF AMERICA, on behalf

of its LOCAL UNION 14530,

Petitioners,

vs.

CHEROKEE ELECTRIC COOPERATIVE,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Donatp W. Davis

(Counsel of Record)

MOORER & DAVIS

2200 City Federal Building

Birmingham, Alabama 35203

(205) 328-9000

]. Canter Clary

2200 City Federal Building

Birmingham, Alabama 35203

(205) 328-9000

Counsel for Respondent

COUNTERSTATEMENT OF QUESTION PRESENTED

Where it is undisputed that a grievance under a collective

bargaining agreement was not filed or reported within the time

limits required by such contract and it is also undisputed that

such time limits were never mutually extended by the parties

or waived by the employer, can the employer nevertheless be

compelled to proceed to arbitration where the collective bar-

gaining agreement specifically states that the grievance is

deemed waived, non-existent and/or settled in favor of the

employer?

TABLE OF CONTENTS

Question Presented

Table of Contents

Table of Authorities

Statement of the Case

Reasons for Denying the Writ

I. The Union cannot now assert the

actual existence of a Issue

IL. To Guth fd Gaetan

Se ey © Ca ee

decisions.

Ill. The holding of the courts below does not

present a conflict with opinions of other

courts of appeal.

Conclusion

Certificate of Service

TABLE OF AUTHORITIES

Cases: Page

AT&T Technologies, Inc. v. Communications Workers,

EY

Auto. Petr. & Allied Industries Empl. Un., Local

618 v. Town & a Ford, 709 F. 2d 509

(8th Cir. 1983) . — <a

Drummond Coal v. Mine — 748 F.2d 1495

(11th Cir. 1984) . Ee

Hospital & Inst. Workers v. Marshal Hale Mem.

osp., 647 F.2d 38 (9th Cir. 1981) _ 8

Int. Un., Auto Workers v. ae Carrier _ be

422 F.2d 47 (10th Cir. 1970) _ _— Seneiansetehinisinal

John Wiley & Sons, Inc. v. Livingston,

CE EEE

Local 406, Operating Engineers v. Austin Co.,

784 F.2d 1262 (5th Cir. 1986) _ SS siicinanenananactdl 8

Minnich v. Gardner, 292 U.S. 48 (1954) 5

National Railroad Passenger Corporation v. Missouri

Pacific Railroad ew F.2d 423

CEE 5

Niro v. Fearn International, Inc., 827 F.2d 173

(7th Cir. 1987) a

Nursing Home & Hosp. Un., Local 434 v. Sky Vue

Terrace, 759 F.2d 1094 (3d Cir. 1985) _..... 8

Philadelphia Printing Pressmen’s Un. No. 16

v. International Paper Co., 648 F.2d 900

(3d Cir. 1981) —_ 9

Rochester Telephone Corp. v. Communications

Workers, 340 F.2d 237 (2d Cir. 1965) 8

Seaboard Coast Line Railroad Company v. National

Rail Passenger a 554 F.2d 657

(5th Cir. 1977) . saad all

lv

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Shopman’s Local 539, Intl. Assn. of Bridge,

Structural and Ornamen.al Iron Workers, AFL-

CIO v. Mosher Steel Company, 796 F.2d

1361 (11th Cir. 1986) 3,8,9

Tobacco Workers, Local 317 v. Lorillard Corp.,

448 F.2d 949 (4th Cir. 1971) ]

United Paperworkers v. Misco, Inc., i

108 S.Ct. 364 (1987) . 6

No. 87-1274

IN THE

Supreme Court Of The Hnited States

October Term, 1987

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC;

UNITED STEELWORKERS OF AMERICA, on behalf

of its LOCAL UNION 14530,

Petitioners,

vs.

CHEROKEF ELECTRIC COOPERATIVE,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Respondent Cherokee Electric Cooperative hereby asserts its

opposition to the petition for a writ of certiorari and respect-

fully urges that the granting of such a writ is not warranted in

this case for the reasons set forth below.

STATEMENT OF THE CASE

Respondent Cherokee Electric Cooperative (hereinafter re-

ferred to as the “Company”) refused to accede to the demand

of the Petitioners (hereinafter referred to as the ““Union’’) that

it proceed to arbitration on Grievance No. 62. The Company

so refused because this grievance was waived and non-existent

under the terms of the collective bargaining agreement. The

Union then brought this action in the District Court to compel

the Company to proceed to arbitration on the grievance. Ulti-

mately, both the Union and the Company filed respective mo-

tions for summary judgment, and the District Court thereafter

granted judgment to the Company.

The facts upon which the District Court based its grant of

summary judgment to the Company were undisputed. The

Union and the Company were parties to a Collective Bargain-

ing Agreement entered into effective June 41, 1985. Article 11

of the Agreement governs the grievance and arbitration proce-

dure which the Company and the Union are subject to. This

grievance procedure contains certain time limits within which

a grievance must be initially reported, and within which the

subsequent steps must be invoked. Article 11, Section 2, Step |

provides in pertinent part as fol!ows:

The employee must report a grievance to his or her im-

mediate supervisor within five (5) work days after em-

ployee's first knowledge of the occurrence causing the

grievance. If the immediate supervisor is not available,

the grievance shall be reported for the record to the De-

partment Head, or his or her designated representative.

Any grievance not reported within five (5) working days

of first knowledge of the occurrence causing the grievance

shall be deemed waived and non-existent.

Additionally, Article 11, Section 3, states in pertinent part as

follows:

Failure of the Cooperative or the Union to take the re-

quired action(s) or meet within the time limits, or any

mutually agreed extension(s) thereof prescribed in Section

2 above, shall be deemed a settlement of the grievance in

favor of the party in whose favor the default runs.

In support of its motion for summary judgment, the Com-

pany presented affidavits and documentation which established

that Grievance No. 62 was not timely filed under the require-

ments of the Collective Bargaining Agreement, and that the

time limits pertaining to such grievance were never extended

or waived by the Company. In support of its own motion for

3

summary judgment, and in response to the Company's motion,

the Union presented absolutely nothing to show that the griev-

ance was arguably either timely filed or that the contractual

time limits were extended or waived by the Company. The

Union did not even advance a theory or a color of an argument

as to how this grievance could be deemed other than having

been waived and non-existent."

Based upon what was clearly the non-existence of the issue,

rather than what the Union now tries to characterize as a dis-

puted issue, the District Court held as follows in its Memoran-

dum Opinion which appears at pp. 13a to 14a of the Appendix

to the Union's Petition:

“Applying the reasoning used by the Eleventh Circuit

in Mosher Steel to the facts of this case, this court con-

cludes that in order to be entitled to present the issue of

the timeliness of a grievance to an arbitrator, the issue

must have been legitimately raised by the Union so that

there is a bona fide procedural timeliness question to be .

determined by the arbitrator. In this case there is no le-

gitimate question of timeliness since the Steelworkers have,

in effect, conceded that the grievance was not timely filed

by failing to dispute it in their pleadings and failing to

support any such contention by affidavits, depositions, an-

swers to in tories, or admissions. This court finds

that Cherokee Electric did not — to submit to arbitra-

tion grievances which on their face are untimely and to

which the timeliness issue is not disputed, and that the

Collective Bargaining Agreement expressly excludes such

issues from arbitration.”

After hearing oral argument, the Court of Appeals affirmed

the District Court's judgment per curiam for the reasons stated

'The Union is now asserting in the “Statement of the Case” portion of

its Petition and in Footnote 4, commencing at page 14 of its Petition,

certain factual allegations and theories in an attempt to now portray

Grievance No. 62 as having arguably been filed in a timely fashion, or as

having the time limits pertaining thereto waived by the Company. As will

be discussed fully in the argument portion of this brief which follows,

none of these contentions were made at the District Court or Court of

Appeals levels, and much of what the Union now asserts has no factual

basis in the record.

4

in the District Court's Memorandum Opinion (Appendix to

Petition, p. la). The Court of Appeals thereafter denied the

Union's petition for a rehearing and suggestion of rehearing

en banc. (Appendix to Petition, pp. 2a-3a) .

REASONS FOR DENYING THE WRIT

The decision of the District Court, which the Eleventh Cir-

curt affirmed per curiam, found that there simply was no pro-

cedural question to be decided. Therefore, under the terms of

the collective bargaining agreement involved, the subject griev-

ance was deemed waived and non-existent. This decision does

not conflict with the decisions of this Court and those of other

Circuits, since most of these prior decisions have recognized,

either directly or implicitly, the existence of an actual question

of procedure to be left to the province of arbitration.

I. The Union cannot now properly assert the actual

existence of a procedural issue concerning the sub-

ject grievance.

Before the District Court the Union failed to present any

evidence which would establish that an issue actually existed

concerning the timeliness of Grievance No. 62, or that would

establish that the time limits applicable had been waived by

the Company. More significantly, the Union failed to dispute

the untimeliness in its pleadings, and further failed to advance

even a theory or a color of a claim as to how the grievance could

be deemed other than having been waived and non-existent.

Nowhere in its own motion for summary judgment, its brief

in support thereof, or its brief in opposition to the Company's

motion for summary judgment did the Union even suggest to

the District Court how an issue could arguably exist. The Dis-

trict Court quite properly concluded that no issue did exist.

On its appeal to the Circuit Court the Union was consistent

with the record it established (or failed to establish) in the

District Court. Nowhere in its principal brief, its reply brief,

or its petition for rehearing did the Union argue or even sug-

gest the existence of facts which might establish the timeliness

of the grievance or the waiver of its untimeliness. Neither did

it suggest any theory or make any argument as to how this gries-

ance could be viewed as other than waived and non-existent.

Counsel for the Union at the Appellate Court level maintained

this position even im response to a direct question by a member

of the panel of the Eleventh Circuit inquiring as to any poss:

ble reasons why this grievance could be deemed other than

waived and non-existent. The Union simply refused to give

any reasons.

Now, in support of the instant Petition the Union is attempt.

ing to portray the existence of a real issue. In a portion of its

“Statement of the Case,” appearing principally at pages 5

through 7 of its Petition, the Union suggests for the first time

in this proceeding that the Company arguably waived any un-

timeliness through its preliminary handling of the grievance.

and then did not raise a timeliness objection until July 10.

1986. The Union takes even further license in Footnote 4.

appearing at pages 14 and 15 of its Petition. Here the Union

attempts to bootstrap a novel waiver argument based upon the

timing of the issuance of an arbitrator's decision dealing with

other prior grievances. The attempt now being made through

Footnote 4 has no support in the record of this proceeding.

The theory that there is, after all, an actual issue as to the

timeliness or waiver of the untimeliness of Grievance No. 62

is now being raised for the first ume. The Union cannot prop-

erly attempt to do such at this point. Minnich v. Gardner, 292

U.S. 48, 53 (1954) ; Seaboard Coast Line Railroad Company v.

National Kail Passenger Corporation, 554 F.2d 657, 660 (5th

Cir. 1977); National Railroad Passenger Corporation v. Mis-

sount Pacific Railroad Company, 501 F.2d 423, 426, n. 3 (Sth

Cir. 1974).

In considering whether to grant the instant Petition, this

Court is respectfully urged not to consider this to be an instance

where an issue of timeliness exists. The Union failed and re

fused to even suggest the actual existence of an issue im the

lower courts It cannot properly do so now. It was therefore

quite correct for the District Court to conclude that a proce-

dural issue was not presented.

Il. The decisions of the Courts below are not directly

contrary to this Court’s prior decisions.

The argument advanced by the Union's Petition greatly

overstates the scope of the District Court's determination and

the affirmance of such by the Eleventh Circuit. The District

Court did not determine the merits of any issue of timeliness,

but rather determined that there simply was no issue. The re-

sulting refusal of the courts below to compel the Company to

proceed to arbitration on a non-issue does not appear to be at

odds with this Court's decision in, John Wiley & Sons v. Liv-

ingston, 376 U.S. 543 (1964). In Wiley, this Court noted the

existence of a legitimate question as to timeliness and stated

as follows at 376 U.S. 557:

“In this case, for example, the Union argues that Wiley’s

consistent refusal to recognize the Union's representative

ape me enya 2 bee wie ‘utterly futile — and a little

bit ridiculous steps as set forth in

the contract. * * * In addition, the Union argues that

time limitations in the grievance procedure are not com-

pelling because Wiley's violations of the bargaining agree-

ment were ‘continuing’.

Recently, in United Paperworkers v. Misco, Inc., _.. US.

. 108 S.Ct. 364, 372 (1987), this Court restated its adher-

ence to Wiley in the context of considering the ruling of an

arbitrator on an evidentiary matter. The existence of a real

issue or “procedural” question is clear in Misco. This Court

nevertheless recognized the power of the lower courts to vacate

or remand an arbitration order “. . . in the very rare instances

when an arbitrator's procedural aberrations rise to the level of

affirmative misconduct .. .”, 108 S.Ct. 364, 372, n. 10.

The instant case is indeed a rare instance where the Union

has not, prior to its attempt to do so in this Petition, even sug-

gested how Grievance No. 62 could be timely or the time limits

7

applicable thereto waived. The District Court, in that portion

of its Memorandum Opinion which appears at page |4a of the

Appendix to the Petition, was therefore correct in concluding

principles stated by this Court in, AT¢T Technologies, Inc. v.

Communications Workers of America. US. __, 106 S.Ct.

1415 (1986) , that whether the Company was bound to arbitrate

this particular grievance was a matter to be determined by the

of the courts below do not appear contrary to this Court's prior

deciai

Ill. The holding of the courts below does not present

a conflict with opinions of other courts of appeal.

The courts below have held only that there was no issue of

timeliness, and that the terms of the subject collective bargain-

ing agreement do not require the Company to arbitrate a

waived and non-existent grievance.

The majority of the decisions of other courts of appeal,

which the Union has cited at pages 16 through 18 of its Petr

tion, have either directly or implicitly recognized the existence

of an actual issue deemed procedural. Of those decisions cited

by the Union, it appears that the Second, Third, Fifth, Eighth

and Ninth Circuits directly noted in their opinions the exis

~

tence of facts issues regarding timeliness. Rochester Telephone

Corp. v. Communications Workers, 340 F.2d 237, 238 (2d Cir.

1965) [Fact issue noted); Nursing Home & Hosp. Un., Local

434 v. Sky Vue Terrace, 759 F.2d 1094, 1097, n. 2 (3rd Cir.

1985) [Court concluded chat grievances were timely filed);

Local 406, Operating Engineers v. Austin Co., 784 F.2d 1262,

1264-1265 (5th Cir. 1986) [Union contended that it had no

knowledge of alleged contract violation more than 30 days

prior to filing grievance]; Auto. Petr. & Allied Industries Empl.

Un. Local 168 v. Town & Country Ford, 709 F.2d 509, 510,

n. 3 (8th Cir. 1983) [Expressly noted issue present]; Hospital

& Inst. Workers v. Marshal Hale Mem. Hosp., 647 F.2d 38, 40

(9h Cir. 1981) [Expressly noted issue present).

It also appears that the Fourth and Tenth Circuits, in their

decisions relied upon by the Union, implicitly recognized the

existence of actual issues. Tobacco Workers, Local 317 v. Loril-

lard Corp., 448 F.2d 949 (4th Cir. 1971); Int. Un. Auto

Workers v. Folding Carrier Corp., 422 F.2d 47 (10th Cir.

1970). Even the Seventh Circuit in Niro v. Fern International,

Inc., 827 F.2d 173 (7th Cir. 1987), because of the somewhat

unique change in position of the union therein after it was

named as a defendant in a hybrid discriminatory failure to rep-

resent case, had a basis for recognizing that an issue of timeli-

ness existed.

In the instant case, the District Court recognized fully the

Fleventh Circuit's prior decisions in Shogman’s Local 539, Intl.

Assn. of Bridge, Structural and Ornamental Iron Workers,

AFL-CIO wv. Mosher Steel Company, 796 F.2d 1361 (11th Cir.

1986) and Drummond Coal Company v. United Mine Workers

of America, 748 F.2d 1495 (Lith Cir, 1984). The District Court

found, and the Eleventh Circuit agreed, that both Mosher Steel

and Drummond were distinguishable on their facts, because in

both cases the companies’ actions had arguably waived their

timeliness objections so that there were questions for an arbi-

trator to decide. In the instant case, there was no question

since the Union never even asserted that the grievance was

timely, or suggested a color of an argument as to how it could

be deemed timely, or that the time limits thereto could have

been determined to have been waived.

The clear non-existence of the issue places this case in a dis-

tinguishable category. Similar to the fact situation dealt with

in Philadelphia Printing Pressmen’s Un. No. 16 v. Interna-

tional Paper Company, 648 F.2d 900 (3d Cir. 1981), the

Union's omission was total rather than arguable. The Third

Circuit's decision in International Paper Co. is distinguishable

on its facts from that Circuit's more recent pronouncement in

Nursing Home & Hosp., Local 434 v. Sky Vue Terrace, supra.

Similarly, the facts of the instant case are distinguishable from

the Eleventh Circuit's prior decisions in Mosher Steel and

Drummond Coal.

The Company respectfully suggests that the split among the

Circuits which the Union asserts in support of its Petition is

less than well-defined and, in any event, is not put in issue by

the narrow holding of the courts below in this case.

For the reasons stated herein, this Court should not issue a

Writ of Certiorari to review the judgment of the court below.

Respectfully submitted,

Donald W. Davis

MOORER & DAVIS

2200 City Federal Building

Birmingham, Alabama 35203

(205) 328-9000

]. Carter Clary

2200 City Federal Building

Birmingham, Alabama $5203

(205) 328-9000

Counsel for Respondent

I hereby certify that three copies of the above and foregoing

Respondent's Brief in Opposition to Petition for Writ of Cer-

tiorari have been served upon Carl B. Frankel, Counsel of

Record for Petitioners. by properly addressed and prepaid U-S.

Mail, on this the day of . 1988.