Record and brief — Saville v. Westinghouse Electric Corp.

DOCKET

PROCEEDINGS AND ORDERS DATE: 102285

CASE NBR $4-1-02034 CFX CASE STATUS: DECIDED

SHORT TITLE Saville, Raymond L. DOCKETED: Jun 19 1985

VERSUS Westinghouse Elec. Corp.

Entry Date Note Proceedings and Orders

1 Jun 19 1985 D Petition for writ of certiorari filed.

2 “141 22 1985 Brief of respondent United Electrical Radio and Machine

Workers, Local 107 in opposition filed.

3 Jul 24 1985 DISTRIGUTED. September 30, 1985

4 Jul 22 1985 Brief of respondent Westinghouse Electric Corp. in

opposition filed.

6 Oct 7 1985 REDISTRIBUTED. October 11, 1985

7 Net 15 1985 Petition DENIED. Dissenting opinion by Justice White.

(Detached opinion.)

SPHBHSSSHPSBPSSSSSSSSSSSSSSSSSeSseeseseseeeseseser rere rcrecrcrcre eer orsces

PETITION

FOR WRIT OF

CERTIORARI

84 - 29) 34 Otis Supreme Cour. US.)

= No.

JUN 10 1985

ALEXANDER L. STEVAS.

IN THE CAERK

SUPREME COURT OF THE UNITED stares—

OCTOBER TERM, 1984

RAYMOND L. SAVILLE, JR.,

Petitioner

vs.

WESTINGHOUSE ELECTRIC CORP.

and UNITED ELECTRICAL, RADIO

AND MACHINE WORKERS OF AMERICA

LOCAL 107,

Respondents

DONALD M. MCCURDY

221 N Olive St.

Media, PA 19063

(215) 566-8121

DAVID R. BLACK

221 N Olive St.

Media, PA 19063

(215) 566-8121

Attorney for

Petitioner

QUESTIONS PRESENTED

Whether this C urt's adoption of a

Six-month statute of limitations in Del

Costello v. International Brotherhood of

Teamsters, shoud be applied retroactively

to a case in which previous statute of

limitations had been six years.

errr tt etter

ii

TABLE OF CONTENTS

Opinions Below . ...+-+-e«« «

Rg EE eae ee ee ee ee ee ee

Statutes Involved ...+.-+.-.e«-«

Statement of the Case ...

Reasons for Granting the Writ

Se ee ee ee ee ee

Peeee GE Service « « « « ec

Appendix

Court of Appeals Decision .

District Court Opinion...

TABLE OF AUTHORITIES

Cases:

Auto Workers v. Hoosier

Corp., 383 U.S. 696 (1966)

Chevron Oil Co. vs. Huson,

404 U.S. 97 (1971), .. .

Christianson v. Pioneer Sand

and Gravel Co., 681 F. 2d

577 (9th Cir. 1982) ...

PAGE

7 . 2

. 7 2

7 . 2

. . 3

. >. 4

. Oo 17

e « &8

App. l

App. 4

e e bl

eo ec 42

e ce AG

iii

Del Costello v. International

Brotherhood of Teamsters,

U.S. , 103 S.Ct.

2281 (1983) . . . . . . 7. . . . 44

Edwards v. Teamsters Local Union

No. 36, 719 F. 2d 1036 (1983) .. 9

Falsetti v. Local Union No. 2026,

U.M.W., 249 F. Supp. 970

(1965), aff'd 355 F. 2d 658

(36 Cate 3966) «© © ec oe eo eo eo eo eo SS

Hines v. Anchor Motor Freight, Inc.,

424 U.S. 554 (1976) ...... 10

Liotta v. National Forge Co.,

629 F. 2d 903 (3d Cir. 1980) . . 15

Melin v. Arcata Graphics, 566

F. Supp. 177 (1983) . . 7 . . . ll

Perez v. Dana Corp. Parish Frame

Div., 718 F. 2d 581 (3d Cir

1983) . . . 7 . . . . . . . . . 9

Sellers v. Spiegel, Inc., 551

F. Supp. 235 (1982) ....e..-e tll

United Parcel Service Inc. v.

Mitchell, 451 U.S. 56 (1981) ..15

Vaca v. Sipes, 386 U.S. 171

(1967) 7 . . . > - 7 . . . . . + 10

Woolett v. Bankers Life Company,

572 F. Supp. 650 (E.D. Mich.

1983) . o . . . . . . 7 . * . . G

iv

Statutes:

National Labor Relations Act

(29 U.S.C. § 160(b) ... «

Judiciary & Judicial Procedure

(42 Pa. C.S.A. § 5527(2) ...

28 U.S.C. 1254(1) -« «© «© « « «

tee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

RAYMOND L. SAVILLE, JR.,

Petitioner

vs.

WESTINGHOUSE ELECTRIC CORP.

and UNITED ELECTRICAL, RADIO

AND MACHINE WORKERS OF AMERICA

LOCAL 107,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE THIRD CIRCUIT

Raymond L. Saville, Jr. hereby peti-

tions that a Writ of Certiorari issued to

review the judgment and opinion of the

United States Court of Appeals for the

Third Circuit entered on March 2l, 1985.

A Se el ta

OPINIONS BELOW

The judgment order of the United

States Court of Appeals for the Third

Circuit, issued without opinion, is set

forth in the appendix at pages App. 1-2.

The opinion of the United States District

Court for the Eastern District of Pennsyl-

vania is printed in the appendix at pages

App. 3-7.

JURISDICTION

The Third Circuit's judgment was

entered on March 21, 1985. The jurisdic-

tion of this Court is invoked under 28

U.S.C. § 1254(1).

STATUTES INVOLVED

The statutes involved herein are the

National Labor Relations Act, 29 U.S.C.

§ 160(b), which provides in pertinent

part: "No complaint shall issue based

upon any unfair labor practice occurring

-2-«

more than six months prior to the filing

of the charge with the Board and the

service of a copy thereof upon the person

against whom such charge is made....";

and a Pennsylvania statute: Judiciary

and Judicial Procedure, 42 Pa. C.S.A. §

5527(2): "The following actions and

procedings must be commenced within six

years: ...an action upon a contract,

obligation or other liability founded

upon a bond, note or other instrument in

writing...."

STATEMENT OF THE CASE

Petitioner, Raymond L. Saville, Jr.

brought this action charging that Respon-

dent Westinghouse, his former employer,

had breached a collective bargaining

agreement, and that Respondent Electrical

Workers, his former union, had breached

its duty of fair representation by

- 3-

ELE ET A tty 5 a te

mishandling the ensuing grievance proceed-

ings. Jurisdiction of the United States

District Court was predicated upon diver-

sity of citizenship, 28 U.S.C. 1332.

Mr. Saville was employed by Westing-

house from March 3, 1969 until he was

summarily terminated January 12, 1979.

He worked as a machine operator and,

later, in the maintenance department.

During his employment, Saville became and

remained a member in good standing of the

Electrical Workers, the union which repre-

sented all employees at Westinghouse.

A collective bargaining agreement

existed between the Company and the

Union. This agreement regulated and

governed the terms of employment for the

employees such as Mr. Saville. It in-

cluded specific grievance/arbitration pro-

cedures for resolving employment dis-

putes. Under these procedures, the

-4-

nae

Electrical Workers was designated exclu-

sive representative of the employees.

Under the collective bargaining agree-

ment, Westinghouse and Electrical Workers

also agreed not to discriminate against

employees because of race, creed, color,

sex, age, Or national origin. From time

to time during Saville's employment, the

Company elaborated upon this commitment

in its published personnel guidelines.

One of these, the "Reaffirmation of the

Handicapped/Veterans' Policies” stated:

It is the policy of Westinghouse to

employ qualified individuals without

regard to physical or mental handi-

caps or degree of handicap which are

not relevant to satisfactory job per-

formance. Westinghouse will take

affirmative action to employ and ad-

vance in employment handicapped indi-

viduals at all levels of employment

including the executive level, and

Otherwise treat qualified handicapped

individuals without discrimination

baseau upon their physical or mental

handicap at all employment practices

such as the following: hiring, up-

grading, demotion or transfer; re-

Cruitment or recruiting advertising;

- §$ «

layoff or termination; rates of pay

or other forms of compensation; selec-

tion for training.

At the time he was hired by Westing-

house, and at all times during his employ-

ment, Saville suffered from a mental hand-

icap. During his employment he was hospi-

talized and diagnosed by treating psychi-

atrists as suffering from manic and de-

pressive illness. This condition can be

controlled by medication. When not con-

trolled, however, its symptoms include

agitation, restlessness and poor

impulse-control.

The Company was aware of Saville's

handicap and on at least one occasion

accorded disability benefits to him when

his condition rendered him temporarily

unable to work. In January, 1979, how-

ever, when Saville again began suffering

from the symptoms of his illness, the Com-

pany chose to summarily fire him for

-6-<-

er el

i te EE me eo

"unsubordination" rather than pay addi-

tional benefits for his disability.

Saville filed a grievance through the

Electrical Workers under the collective

bargaining agreement. When Westinghouse

failed to address this grievance, Saville

asked the Union to take his case to arbi-

tration. This the Union promised to do.

However, when Saville made inquiries

about the status of his case more than a

year after he was terminated, he was in-

formed by the Union that it had decided

not to take his case to arbitration.

This civil action was thereafter com-

menced May 25, 1984. After a Complaint

was filed, Westinghouse and the Electri-

cal Workers filed Motions to Dismiss,

raising the question which is being pre-

sented to the Court in this Petition.

The United States District Court, per the

) Honorable Charles R. Weiner, granted

those motions and dismissed the

Complaint.

tt ON «

Se EE

REASONS FOR GRANTING THE WRIT

This is an important case involving a

question about which the Federal Courts

of Appeals are in serious conflict. In

Perez v. Dana Corp. Parish Frame Div.,

718 F. 2a 581 (3d Cir. 1983) the Third

Circuit has concluded that the decision

of this Court in Del Costello v. Interna-

tional Brotherhood of Teamsters, U.S.

___,» 103 §.Ct. 2281 (1983) should be

applied retroactively to ber a cause of

action which arose long before Del

Costello was decided. This decision,

while constituting binding precedent with-

in the Third Circuit, is in direct con-

flict with the position adopted by the

Ninth Circuit in Edwards v. Teamsters

Local Union No. 36, 719 F. 2d 1036

(1983), and with lower courts in other

circuits. See Woolett v. Bankers Life

- 9-

Company, 572 F. Supp. 650 (E.D. Mich.

1983). Given the paramount importance of

maintaining uniformity of decision among

various federal circuits, and given this

Court's interest, expressed in Del

Costello, of providing for uniform treat-

ment of similar labor disputes, the issue

presented in this case is one of excep-

tional importance meriting review by this

‘Court.

Causes of action such as Mr.

Saville's have been dubbed, succinctly,

"hybrid 30l-fair representation claims."

Hines v. Anchor Motor Freight, Inc., 424

U.S. 554 (1976); Vaca v. Sipes, 386 U.S.

171 (1967). Until recently such actions

were thought to be governed not by fed-

eral statutes of limitations, but by limi-

tations statutes of the forum state most

closely analogous to a Plaintiff's 301-

fair representation claim. Until Del

- 10 =-

Costello v. International Brotherhood of

Teamsters, U.S. = 103 S.Ct. 22861

(1983) was decided, the Courts in Pennsyl-

vania uniformly applied the Pennsylvania

statute of limitations governing written

agreements. See 42 Pa. C.S.A. 5527(2).

This limitations period is six years.

Sellers v. Spiegel, Inc., 551 F. Supp.

235 (1982); Falsetti v. Local Union No.

2026, U.M.W., 249 F. Supp. 970 (1965),

aff'd 355 F. 24 658 (3d Cir. 1966) see

Melin v. Arcata Graphics, 566 F. Supp.

177 (1983). This adoption of Pennsyl-

vania's statute of limitations for breach

of contract was thought to be in confor-

mance with the pronouncements of this

Court in Auto Workers v. Hoosier Corp.,

383 U.S. 696 (1966).

These earlier lower court decisions

applying Pennsylvania's six year statute

were effectively overruled by Del

- ll -

Costello. In that decision, this Court

held that the appropriate statute to be

applied in cases like Mr. Saville's is

Section 10(b) of the National Labor Rela-

tions Act, 29 U.S.C. 160(b). By borrow-

ing the federal limitations rather than

that of the forum state, this Court effec-

tively reduced from six years to six

months the time in which a claimant may

file a civil action.

Since Del Costello adopted a shorter

statute of limitations than that prevail-

ing when Mr. Saville's cause of action

arose, it should not be applied to Mr.

Saville if to do so would be inheritently

unfair. In Chevron Oil Co. vs. Huson,

404 U.S. 97 (1971), this Court declined

to apply a statute of limitations retro-

actively and set forth three factors

which it deemed controlling:

- 12 =-

First, the decision to be applied

non-retroactively must establish a

new principle of law, either by over-

ruling clear past precedent on which

litigants may have relied or by decid-

ing an issue of first impression

whose resolution was not clearly fore-

shadowed.... Second, it has been

stressed that "we must...weigh the

merits and demerits in each case by

looking to the prior history of the

rule in question, its purpose and

effect, and whether retrospective

operation will further or retard its

operation."...Finally, we have

weighed the inequity imposed by retro-

active application, for “where a deci-

sion of this Court could produce sub-

Stantial inequitable results if ap-

plied retroactively, there is ample

basis in our cases for avoiding the

‘injustice or hardship" by a holding

of nonretroactivity." 404 U.S. at

106-107.

APD ae te. ed Me™, $s APOE

In Edwards v. Teamsters Local Union

ee ee ae ee ee

No. 36, 719 F. 2d 1036 (9th Cir 1983),

the U.S. Court of Appeals for the Ninth

Circuit held that Del Costello should not

be retroactively applied. Relying upon

the factors announced in Chevron Oil, the

:

| Court in Edwards noted that Del Costello

Signaled a clear departure from previous

°“1ij3-

holdings. Therefore, the first criterion

of Chevron Oil had been met. With

respect to the second factor, the Court

noted:

"We find that the reasons behind

allowing actions against a union for

the breach of its duty of fair repre-

sentation would be disserved by bar-

ring suit by an employee when prece-

dent existing at the time of filing

permitted it." 719 F. 2d at 1040.

The Court, in summary, found that it

would be inequitable to apply Del

Costello retroactively.

In direct contradiction of Edwards v.

Teamsters, the U.S. Court of Appeals for

the Third Circuit has held that Del

Costello should be applied retroactively.

Perez v. Dana Corp. Parish Frame Div.,

718 F. 2d 581 (3d Cir 1983). On the

authority of the precedent in this

Circuit set by the Perez case, the

District Court dismissed Mr. Saville's

complaint as it was bound to do.

- 14 -

In applying Del Costello retro-

actively, the Third Circuit in Perez

relied upon factors which were not pre-

sent in Mr. Saville‘'s case. First, since

Perez involved an appeal from an arbitra-

tor's decision, the Court in that case

would have been foreclosed, if not by Del

Costello, then by the shorter Pennsyl-

vania statute of limitations (governing

arbitration decisions) on the authority

of United Parcel Service Inc. v.

Mitchell, 451 U.S. 56 (1981); and Liotta

v. National Forge Co., 629 F. 2d 903 (3d

Cir. 1980). Therefore, in Perez there

was no ineguity in applying the Del

Costello rule, since Del Costello

announced a longer, not shorter, statute

than would have applied theretofore.

Unlike Mitchell and Liotta, Saville's

was not an arbitration case. His grie-

vance had never been submitted to arbitra-

- 15 =-

tion. Accordingly, the short Pennsyl-

vania statute governing arbitration

awards would not have applied to him.

See Christianson v. Pioneer Sand and

Gravel Co., 681 F. 2d 577 (9th Cir.

1982). Rather, Pennsylvania's ionger six

year statute applicable to written con-

tracts would apply. In the case of Mr.

Saville, the inequity of applying the Del

Costello rule to reduce his filing time

from six years to six months is, it is

submitted, apparent.

More important, a comparison of Perez

and Edwards shows that the Third Circuit

and Ninth Circuit have taken diametri-

cally opposed positions concerning this

guestion. In the interest of the uniform

administration of the federal courts,

this conflict should be resolved.

- 16 <-

CONC!.US ION

For the foregoing reasons, it is

respectfully submitted that this Court

should grant the Petition for a Writ of

Certiorari to review the decision of the

Court of Appeals for the Third Circuit.

Respectfully submitted,

aM. McCurdy

221 N Olive St.

Media, PA 19063

(215) 566-8121

R

DAVID R. BLACK, ESQUIRE

221 North Olive Street

Media, PA 19063

(215) 566-8121

Attorney for Petitioner

Raymond L. Savilie, Jr.

- 17 «-

PROOF OF SERVICE

DAVID R. BLACK, on oath deposes and

states that on the 19th day of June,

1985, three copies of the Petition for a

Writ of Certiorari were served by first

class mail, postage prepaid, on Robert 2.

Lewis, Esquire at ll East 5lst Street,

New York, New York 10022, and Dona S.

Kahn, Esquire at Harris and Kahn, 14th

Floor, 1600 Market Street, Philadelphia,

Pennsylvania 19103, and Ira J. Katz, 1200

Walnut Street, Philadelphia, Pennsylvania

19107, and that all partice reguired to

be served have been served.

’

221 North Olive Street

Media, PA 19063

(215) 566-8121

Attorney for Petitioner

Subscribed and sworn to *<fore

me this 19th day of June, 1985

APPENDIX

EXHIBIT "A"

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 84-1538

RAYMOND L. SAVILLE, JR.

Appellant

Ve

WESTINGHOUSE ELECTRIC CORPORATION and

UNITED ELECTRICAL RADIO AND MACHINE

WORKERS OF AMERICA LOCAL 107

(Action No. 84-2523 - E.D. Pa.)

District Judge:

Honorable Charles R. Weiner

Submitted Under Third Circuit Rule 12(6)

March 20, 1985

BEFORE: SEITZ, HIGGINBOTHAM, Circuit

Judges, and WEBER, District Judge.

JUDGMENT ORDER

After consideration of the contention

raised by appellant, it is

ADJUDGED AND ORDERED that the

judgment of the district court be and is

App. 2

hereby affirmed.

Costs taxed against appellant.

By the Court,

{sl Seitz

t Judge

ATTEST:

os M. Elizabeth Ferguson

ork

DATED: March 21, 1985

*¥ flonorable Gerald J. Weber, United

States District Judge for the Western

District of Pennsylvania, sitting by

designation.

App. 3

Page 2

Certified as a true copy and issued in

lieu of a formal mandate on April 12,

1985.

Test: /s/ M. Elizabeth Ferguson

Chief Deputy Clerk, U.S. Court of Appeals

for the Third Circuit

App. 4

EXHIBIT “B"

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RAYMOND L. SAVILLE, JR.

vs. C.A. NO. 84-2523

WESTINGHOUSE ELECTRIC

CORPORATION and UNITED

ELECTRICAL RADIO and

MACHINE WORKERS OF

AMERICA LOCAL 107

MEMORANDUM OPINION AND ORDER

WEINER, J. AUGUST 17, 1984

This action was brought by plaintiff,

an electrical worker, against his former

employer, Westinghouse Electric Corpora-

tion, ("Westinghouse") alleging unlawful

employment termination, and against his

union, the United Electrical Radio and

Machine Workers of America, Local 107,

("Union") alleging unfair representation.

Under Section 301 of the National Labor

Management Relations Act of 1947

("NLMRA"), an individual employee may in

App. 5

one action charge his employer with the

breach of the collective bargaining agree-

ment and also charge his union with vio-

lating its duty to fairly represent him

by mishandling the ensuing grievance pro-

cedure. Hines v. Anchor Motor Freight,

424 U.S. 554, 567 (1976); Vaca v. Sipes,

386 U.S. 171, 186-187 (1967).

Plaintiff was hired by Westinghouse

on March 3, 1969 as a janitor's aide and

was assigned to Westinghouse's Lester,

Pennsylvania plant. As was required by

his employment, plaintiff became a member

of the Union. A collective bargaining

agreement existed between Westinghouse

and the Union during the time relevant to

this case.

Plaintiff was mentally handicapped at

the time of his employment. He was diag-

nosed as manic depressive, and took medi-

cation to control his illness. Plaintiff

App. 6

was discharged on January 12, 1979 for

insubordination.

Plaintiff filed a grievance with the

Union in accordance with the collective

bargaining agreement. Westinghouse did

not address the grievance, and plaintiff

requested the Union to take the case to

arbitration. The Union notified plain-

tiff that they would not submit the case

to arbitration. Plaintiff filed his com-

Plaint with this court on May 25, 1984.

. Plaintiff alleges that Westinghouse

discharged him because of his mental hand-

icap which bore no relationship to his

job performance, and that such discharge

was in violation of Westinghouse's stated

policy to employ qualified individuals

without regard to physical or mental hand-

icaps. Plaintiff charges the Union with

violating its duty to fairly represent

App. 7

him against the employer under an estab-

lished grievance procedure.

Plaintiff requests a declaratory judg-

ment that Westinghouse violated its poli-

cies in terminating him and a permanent

injunction directing Westinghouse to rein-

state him as of the date of termination

with all back wages. Also, plaintiff

requests $30,000 compensatory damages and

$60,000 punitive damages from each of the

defendants along with his costs and

attorney's fees.

Presently before the court are defen-

dants' motions to dismiss this case.

Defendants argue that the complaint fails

to state a claim upon which relief can be

granted, and is barred by the applicable

statute of limitations.

Section 301 of th NLRMA does not spe-

cifically indicate the statute of limita-

tions applicable to actions thereunder.

App. 8

Perez v. Data Corp., Parish Frame Div.,

718 F. 2d 581, 583 (3d Cir. 1983). The

Supreme Court has held that the appli-

cable statute of limitations in an action

by an employee against his employer and

union alleging that the employer breached

a provision of the collective bargaining

agreement and that the union breached its

duty of fair representation, is the six

months limitations period set forth in

29 U.S.C. §160(B). DelCostello v.

International Brotherhood of Teamsters,

U.S. , 103 S.Ct. 2281 (1983).

In the case sub judice, the plaintiff

was discharged on January 12, 1979. The

complaint was filed by him in this court

on May 25, 1984. The complaint was there-

fore filed long after the six months limi-

tation period set forth in 29 U.S.C.

§160(B). Plaintiff however, argues that

the ruling in DelCostello should be given

| APP. 9

prospective application only, and there-

fore not be determinative of the case sub

judice. We do not agree.

The Perez court in a well-reasoned

analysis of the DelCostello decision,

determined that DelCostello should be

applied retroactively. 718 F.2d at 588.

"Where a party gives such indications

that he is sleeping on his rights, it is

not inequitable to apply the statute of

limitations retroactively to bar his

Claim." Id. Following that ruling, we

find that the plaintiff's claim in the

case sub judice alleging a violation of

the collective bargaining agreement

against Westinghouse, and a breach of

duty of fair representation against the

Union, having been filed more than five

(5) years after his cause of action

arose, is dismissed with prejudice as not

being timely filed.

App. 10

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RAYMOND L. SAVILLE, JR.

vs. C.A. NO. 84-2523

WESTINGHOUSE ELECTRIC

CORPORATION and UNITED

ELECTRICAL RADIO and

MACHINE WORKERS OF

AMERICA LOCAL 107

AUGUST 17, 1984

ORDER

The motions of the defendants

Westinghouse Electric Corporation and

United Electrical Radio and Machine

Workers of America Local 107 to dismiss

the complaint are GRANTED.

The complaint of the plaintiff is

DISMISSED with prejudice.

IT IS SO ORDERED.

{/s/ Charles R. Weiver

aries R. Weiner

OPPOSITION

BRIEF

| OMhice Supreme Court, US

| FILED .

| JUL 22 1985

No. 84-2034 xn <—

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1984

RAYMOND L. SAVILLE. JR

Petitioner

{

WESTINGHOUSE ELECTRIC CORPORATION

AND)

UNITED ELECTRICAL. RADIO &

MACHINE WORKERS OF AMERICA LOCAL 107

Re sponde nits

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUT

BRIEF OF RESPONDENT IN OPPOSITION

Dona S. Kahn, Esquire

Alison Pease, Esquire

Attorneys for Responde nt

Westinghouse Electric Corp

Of Counsel

HARRIS AND KAHN

Suite 1416

1600 Market Street

Philadelphia, PA 19103

(215) 568-4202

PACKARD PRESS LEGAL DIVISION (0th & SPRING GARDEN STREETS PHA PA 19129 (215) 238 20008

BEST AVAILABLE COPY

TABLE OF CONTENTS

I. QUESTION PRESENTED

II. STATEMENT OF THE CASE

oo vl

III. SUMMARY OF ARGUMENT

IV. REASONS FOR DENYING THE WRIT 10

A. ANY CONFLICT AMONG THE

COURTS OF APPEALS IS NOT

SIGNIFICANT ENOUGH TO

WARRANT THIS COURT'S

ATTENTION 10

B. GIVEN THE FACTS OF THE :

CASE, REVIEW OF THE

ISSUE OF THE RETROAC-

TIVITY OF

WOULD NOT ATE 15

Cc. THE COURT SHOULD NOT

EXERCISE ITS DISCRETION

TO REVIEW THIS CASE AS

THE LOWER COURTS CORRECTLY

APPLIED THE LAW 20

Vv. CONCLUSION 28

STATEMENT OF RESPONDENT WE. TINGHOUSE

ELECTRIC CORPORATION AS REQUIRED BY

SUPREME COURT RULE 28.1 29

ii iii

TABLE OF AUTHORITI TABLE OF AUTHORITIES

CASES CITED: PAGE | CASES CITED: (continued) PAGE

v. Pederated 14, 15 Graves v. Smith's Transfer 11

: ~ Corp., 736 F.2d 819 (ist Cir.

t r. 8s) Teeth

i 24 Gulf Off Shore C ny v. 20

Chevron Oil a v. Huson, one 23, " ae OP ons

ey. U.S. 374, 486 n.16 (1981)

l, 7. 8, 9,

10, 12, 13, Hang ~. international Chemical 12

20, 21, 22, c Se 83)

4, 25

Ze me ‘ Lawson v. Truck Drivers Local 24

i Union ° .

Edwards v. Sea-Land Sepweces 12 254 t ir. 1983)

nc. >. r.

: Liotta v. National Forge 18, 24, 26

“ ——

r. cert. denied

‘teats v. rea Loc 10, 12 451 0.8. 970 os ’

pa _ toga), SSEt- ‘ Lincoln v. District 9, 12

104 S.ct. 1599 (1984) 723 F.2d 627 (8th Cir. 1983)

FPalsetti v. Local —— #2026, 16, 17, 18, MNAUGEECE Billingham 13

968) : 355 ” Toth Cis 1504), cort. denied

1965), aff'd 355 F.2d 658 | r. , cert. denie

38 Cir. 1986) U.S. , 105 S.Ct.

791 (1984). —

. * 13, 14, 15

Glover “ United sips ne : Melin v. Arcata Graphics, 556 16, 17

- Supp. -Y. 1983)

iv

TABLE OF AUTHORITIES

CASES CITED: (continued)

Murray v. Branch Motor

Express Co., 723 F.2d 1146

(4th Cir. 1983)

Perez v. Dana Corporation

aris rame vision, 718

F.2¢ 581 (3rd Cir. 1983)

Scott v. Local 863, Inter-

national Brotherhood of

Teamsters, 725 F.2d 226, 228

(3d Cir. 1984)

Sellers v. Spiegel, Inc., 55l

F.Supp. 338 (ED Pa. 1982)

Smith v. General Motors, Inc.,

e t r. )

Storck v. International

Brother ° eamsters,

: t r. 1983)

United Parcel Service, Inc.

v. Mitchell, 451 U.S. 56

Welyczko v. U.S. Air Inc.,

EE F.2da 239 (ond Cir. 1984),

cert. denied, U.S.

105 S.Ct. 1512 (1984)

PAGE

12

11, 12, 22,

23, 24, 2§

22, 27

16

ll, 21

Vv

TABLE OF AUTHORITIES

STATUTES CITED:

Section 30l(a) of the Labor

Management Relations Act,

29 U.S.C. §185 (a)

Section 10(b) of the National

Labor Relations Act (NLRA),

29 U.S.C. §160(b)

Pennsylvania six year statute

of limitations found at

42 Pa. C.S.A. §5527(2)

Pennsylvania General Arbitra-

tion Act, 5 P.S. §173

PAGE

6, 8, 10,

16, 18, 19,

21, 23, 27

7, 10

15, 17, 18

18

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

No.

RAYMOND L. SAVILLE, JR.,

Petitioner,

Vv. ,

WESTINGHOUSE ELECTRIC CORPORATION,

and

UNITED ELECTRICAL, RADIO &

MACHINE WORKERS OF AMERICA LOCAL 107,

Respondents.

PETITION FOR WRIT OF CERTIORARI

BRIEF OF RESPONDENT IN OPPOSITION

I. QUESTION PRESENTED

Did the Court of Appeals err in

upholding the district court's retroactive

application of the holding of DelCostello

v. International Brotherhood of Teamsters,

462 U.S. 151 (1983), and its dismissal of

the complaint as untimely since it was not

filed within the six month statute of limi-

tations set forth in 29 U.S.C. §160(b)?

II. STATEMENT OF THE CASE

Petitioner, Raymond L. Saville,

Jr., was hired on May 3, 1969, as a sweep-

er by respondent Westinghouse Electric

Corporation and assigned to its facility

in Lester, Pennsylvania. As a condition

of his employment, Mr. Saville became a

member of the United Electrical, Radio &

Machine Workers of America, Local 107, the

other respondent in this case. On Jan-

uary 12, 1979, Mr. Saville was fired for

insubordination.

Throughout the more than nine

and a half (9-1/2) years of his employment

with Westinghouse, Mr. Saville was a trou-

blesome employee. His work was often poor,

and he had recurring disciplinary problems.

Mr. Saville is a manic-depressive, and be-

cause of his mental illness respondent

Westinghouse made every effort to help

Mr. Saville keep his job. On several

-2-

occasions, when the symptoms of his iil-

ness were severe, the company granted him

leave and disability benefits. After the

symptoms subsided, Mr. Saville was allowed

to return to work. Finally, however, Mr.

Saville's bizarre behavior and insubordi-

nation required Westinghouse to dismiss

him.

The events leading to his dis-

missal are undisputed. On January 10,

1979, management and union representa-

tives met with petitioner to discuss his

failure to clean certain washrooms. At

this meeting, petitioner was extremely

uncooperative. When the meeting broke for

lunch he entered the building where the

washrooms were located with a six foot

"2-by-4." He returned to his job but re-

fused to return to the meeting. At that

point Westinghouse reassigned petitioner

r

to another job.

Two days later, on January 12,

1979, Mr. Saville, without authority and

without cause, closed a women's washroom.

In an apparent effort to discourage en-

trance to the washroom, he put a crude,

scatological sign on the door. As a re-

sult of the incident, Westinghouse sus-

pended Mr. Saville for an indefinite

period. When he refused to attend a

meeting with management and union repre-

sentatives to discuss these problems,

he was dismissed from his job effective

January 12, 1979.

Respondent Westinghouse did not

act precipitously in firing Mr. Saville.

Rather, in the more than nine and a half

(9-1/2) years of his employment at West-

inghouse, the company exhibited great

patience with Mr. Saville's irratic be-

havior. It gave him special treatment

and consideration because of his mental

-4-

illness. He received disability payments

even though in one incident he had volun-

tarily resigned. Also, over the years, at

Mr. Saville's request, Westinghouse had

reassigned him to different jobs and var-

ious work areas. In fact, respondent was

in the process of reassigning petitioner

once again when the incident involving the

women's washroom occurred. At that time,

Mr. Saville had just returned from a dis-

ciplinary suspension which had resulted

from another incident of insubordination

during which he had used abusive and

threatening language with his supervisor

and union shop steward.

Thereafter, petitioner filed a

grievance through his union under terms of

the collective bargaining agreement. The

union did not pursue the grievance proce-

dure; therefore, his claim was never

taken to arbitration. By his own account,

o§<

petitioner did not ask the union about the

status of his grievance until approximate-

ly a year after he had filed the original

grievance. (Petition at p.7). Five years

and four months after his discharge, on

May 25, 1984, he filed a complaint in the

United States District Court for the East-

ern District of Pennsylvania against the

two respondents.

Mr. Saville alleges what is com-

monly known as a hybrid 301 - fair repre-

1/

sentation claim.— He contends that West-

inghouse, his former employer, breached

the collective bargaining agreement when

it fired him from his job on January 12,

1979, and that the union breached its

1. The action was brought under Section

301(a) of the Labor Management Rela-

tions Act, 29 U.S.C. §185(a).

duty of fair representation by failing to

pursue his grievance.2/

The district court granted the

motions to dismiss filed by Westinghouse

and the union. Relying upon this Court's

decision in DelCostello v. International

Brotherhood of Teamsters, 462 U.S. 151

(1983), the court found that the applic-

able statute of limitations for the case

was the six month period set forth in

Section 10(b) of the National Labor Rela-

tions Act (NLRA), 29 U.S.C. §160(b). The

complaint was dismissed as untimely. The

2. Petitioner contends that Westinghouse

breached one of its written, person-

nel guidelines, which states in rele-

vant part: "It is the policy of

Westinghouse to employ qualified indi-

viduals without regard to physical or

mental handicaps or degree of handi-

cap which are not relevant to satis-

es job performance. (Petition

at p.5 (emphasis added.) In this

case, petitioner's mental illness

continually had interfered with the

satisfactory performance of his job.

eFe

United States Court of Appeals for the

Third Circuit affirmed, without an opin-

ion, the judgment of the district court

dismissing the complaint.

III. SUMMARY OF ARGUMENT

This Court should decline to

exercise its discretion to review the dis-

missal of petitioner's complaint. Con-

trary to petitioner's assertion, there is

not a substantial conflict among the

federal courts of appeals regarding the

retroactive application of the holding of

DelCostello v. International Brotherhood

of Teamsters, 462 U.S. 151 (1983) finding

that the six month statute of limitations

in the NLRA should govern §301 actions

against employers and unions. Of the

ten circuit courts which have addressed

the question, nine have held that there

should be retroactive application of the

new rule regarding the applicable statute

of limitations announced in DelCostello,

supra. The position of the Ninth Circuit,

which has refused to apply DelCostello

retroactively in any case where to do so

would shorten the limitations period, is

not a sound one. Not only is it a dis-

tinctly minority view, but given that the

Ninth Circuit has applied DelCostello

retroactively to lengthen a limitations

period, it is a position which seems to

be result-oriented.

An additional reason for denying

the Writ in this case is that the lower

courts correctly applied the law and

reached a just and fair determination of

the issues.

IV. REASONS FOR DENYING THE WRIT

A. ANY CONFLICT AMONG THE COURTS

OF APPEALS IS NOT SIGNIFICANT

ENOUGH TO WARRANT THIS COURT'S

ATTENTION.

Petitioner urges this Court

to exercise its discretion and grant

certiorari in this case because of a "ser-

ious conflict" among the federal courts

of appeals involving the question of the

retroactive application of the holding of

DelCostello v. International Brotherhood

of Teamsters, 462 U.S. 151 (1983) .2/

(Petition at p.9). Petitioner, however,

cites only two opinions, Edwards v. Team-

sters Local Union #36, 719 F.2d 1036 (9th

De In DelCostello, supra, this Court

held that six months statute of limi-

tations in §10(b) of the NLRA should

govern Section 301 actions against

both the employer and the _ union.

There is no federal statute of limi-

tations specifically applicable.

Prior to DelCostello, the federal

courts had applied various state sta-

tutes of limitations to these cases.

-1Q@-

Cir. 1983), cert. denied U.S. P

104 S.Ct. 1599 (1984) and Perez v. Dana

Corporation Parish Frame Division, 718

F.2d 581 (3rd Cir. 1983), in support of

his claim that the conflict among the

federal appellate courts is substantial

enough to justify review by this Court.

Respondent Westinghouse disputes

that there is a “serious conflict" among

the federal courts of appeals on this

question. To date ten federal courts of

appeals have decided this issue; all but

one, the Ninth Circuit, have held that the

decision should have retroactive applica-

4/

tion.— When such an overwhelming number

of courts favor one position, there is not

4. See Smith v. General Motors, Inc.,

747 F.2d 372 (oth Cir. 1984); Graves

a "serious conflict." Rather, the posi-

tion taken by the Ninth Circuit on this

issue can be characterized as a clearly

minority view. Given that the great pre-

ponderance of federal appellate courts

favor retroactive application, the issue

is not worthy of this Court's time and

5/

attention.=

v. Smith's Transfer Corp., 736 F.2d

819 (lst Cir. 1984); Welyctko v. U.S.

Air, Inc., 733 F.2d 23 Cir.

(FOOTNOTE 4 CONTINUED ON NEXT PAGE)

“lle

(FOOTNOTE 4 CONTINUED)

1984); Perez v. Dana Corp., 718 F.2d

581 (3d Cir. 1983); Murray v. Branch

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

Cir. 1983); Edwards v. Sea-Land Serv-

ice, Inc., 720 F.2d 857 (5th Cir.

1983); Storck v. International Bro-

therhood of Teamsters, 712 F.2d 1194

(7th Cir. 1983); Lincoln v. District

9, 723 F.2d 627 (8th Cir. 1983); Hand

v. International Chemical Workers

Union, 712 F.2d 1350 (llth Cir. 1983).

But see Edwards v. Teamsters Local

Union #36, 719 F.2d 1036 (9th Cir.

1983).

5S. Indeed, this Court has declined to

address the issue of the retro-

activity of DelCostello on at least

three occasions. See Edwards v.

(FOOTNOTE 5 CONTINUED ON NEXT PAGE)

«12

Also, in two recent opinions,

the Ninth Circuit has modified its posi-

tion that the DelCostello holding should

not be applied retroactively. In Glover

v. United Grocers, Inc., 746 F.2d 1380

(9th Cir. 1985), the court of appeals

affirmed the district court's applica-

tion of the six month statute of limi-

tations set forth in DelCostello, which

resulted in the dismissal of the hybrid-

301 fair representation action as _ un-

timely. The Ninth Circuit held that the

six months period should apply in this

(FOOTNOTE 5 CONTINUED)

Teamsters Local Union #36, 719 F.2d

1036 (9th Cir. 1983), cert. denied

U.S. , 104 §.Ct. Report-

er 1599 (1984); Welyczko v. U.S.

Air, 733 F.2d 239 (2d Cir. 1984),

cert. denied, U.S. , 105

S.Ct. 512 (1984); McNaughton _v.

Billingham Corporation, 722 F.2d

1459 (9th Cir. 1984), cert. denied

U.S. » 405 §.Ct. 293

(1984).

@13<

case because "the retroactive effect of

DelCostello is to lengthen, not shorten,

the time in which Glover cculd have

filed." 746 F.2d. at 1382. In Glover,

the applicable state statute of limita-

tions was Oregon's twenty (20) day limi-

tation period for vacation of arbitration

awards.

In Aragon v. Federated Depart-

ment Stores, Inc., 750 F.2d 1547 (9th

Cir. 1985), another panel of the Ninth

Circuit applied the DelCostello holding

retroactively. In Aragon, the state

statute of limitations which would have

applied was California's 100 day limit on

filing suits to vacate an arbitration

award. The plaintiff's suit was time-

barred regardless of which of the two

limitations period applied; however, the

Aragon court held that since the appli-

cation of DelCostello would lengthen

olg-

rather than shorten the period, it should

be applied retroactively.

The opinions in Glover’ and

Aragon, supra, suggest that the Ninth

Circuit is more concerned with result than

with an even, consistent interpretation of

the law. The divergent positions taken by

that court on the retroactivity of Del-

Costello cast further doubt upon the rea-

sonableness of its minority position on

this issue.

B. GIVEN THE FACTS OF THE CASE,

REVIEW OF THE ISSUE OF THE

RETROACTIVITY OF DELCOSTELLO

WOULD NOT BE APPROPRIATE.

An important premise of petition-

er's claim that this Court should grant

discretionary review of the dismissal of

his case is that when his cause of action

arose the federal courts in Pennsylvania

"uniformly applied" the Pennsylvania six

year statute of limitations found at 42

o15-

Pa. C.S.A. §5527(2) .£/ Petitioner argues

that he relied upon supposedly consistent

caselaw in failing to file his complaint

for over five years after his firing.

A review of the decisions of the

Third Circuit and the district courts in

Pennsylvania shows, however, that no such

consistency existed. In support of his

contention, petitioner cites only three

cases: Falsetti v. Local Union #2026,

U.M.W. 249 F.Supp. 970 (1965), aff'd 355

F.2d 658 (3d Cir. 1966); Sellers v. Spie-

gel, Inc., 551 F.Supp. 235 (E.D.Pa. 1982)

and Melin v. Arcata Graphics, 556 F.Supp.

177 (W.D.N.Y. 1983). Any reliance by

petitioner on these decisions was not rea-

sonable. First, three decisions hardly

6. It is petitioner's view that the six

year statute governed because a §301

action was most analogous to an ac-

tion based upon a contract. (Peti-

tion at pp.3, 11).

-16-

constacute a definitive precedent. Second,

the decision in Melin, supra, did not ap-

ply Pennsylvania law and was not decided

by a federal court sitting in Pennsylvania

Also, language in the Falsetti decision

should have put petitioner on notice that

the law regarding which state statute of

limitations would apply was not settled.

The Third Circuit in Falsetti

affirmed the lower court's finding that

the plaintiff's hybrid-301 fair represen-

tation case was barred by the Pennsylvania

six year statute of limitations governing

personal actions. The court did note,

however, that:

It may well be, however, that at

least in a case such as this, where

the facts were susceptible of trig-

gering National Labor Relations

Board action on unfair iabor prac-

tice grounds, that the state sta-

tute of limitations would cause

undesirably lingering litigation

in light of the six month federal

statute of limitations governing

o} Jo

unfair labor practices.... 335

F.2d at 662.

This comment presaged this

Court's holding in DelCostello. In any

event, this observation in Falsetti should

have alerted petitioner that he could

not assume that the Pennsylvania six year

statute of limitations would govern his

§301 ciaim. This is particularly true

since subsequent decisions both of the

Third Circuit and of this Court raised

serious doubts about the applicability of

a six year statute of limitations in a

hybrid-301 - fair representation case.

For example, in Liotta vv.

National Forge Company, 629 F.2d 903 (3d

Cir. 1980), cert. denied, 451 U.S. 970

(1981), the Third Circuit held that the

three month statute of limitations of

Pennsylvania's General Arbitration Act,

5 P.S. §173, would apply to the 301 suit

-18-

brought by Mr. Liotta against his employer

for an alleged breach of the collective

bargaining agreement. Soon after, this

Court found in United Parcel Service, Inc.

v. Mitchell, 451 U.S. 56 (1981), that the

state statute of limitations period that

should be borrowed and applied to an em-

ployee's §301 action against his employer

was the limitations period for actions to

vacate arbitration awards. This Court

specifically rejected the employee's argu-

ment that his action against his employer

was one for breach of contract:

--. thus respondent's characteri-

zation of his actions against the

employer as one for ‘breach of

contract’ ignores the significance

that it was brought in the District

Court pursuant to §30l(a) of the

LMRA and that the indispensable

predicate for such an action is not

a showing under traditional con-

tract law that the discharge was a

breach of the collective-bargaining

agreement, but instead a demonstra-

tion that the Union breached its

-19-

duty of fair representation. 451

U.S. at 62.

This language gave notice to all potential

301 claimants that their actions against

their employers were not analogous to a

breach of contract ciaim and that the

state statutes of limitations governing

contracts therefore would not apply.

Cc. THE COURT SHOULD NOT EXERCISE

ITS DISCRETION TO REVIEW THIS

CASE AS THE LOWER COURTS COR-

RECTLY APPLIED THE LAW.

The crucial issue in this case

is whether the determination of the dis-

trict court and the court of appeals that

the holding of DelCostello should apply

was the correct one. An appellate court

must apply, as a general rule, the law in

effect at the time it makes its decision.

Gulf Off Shore Company v. Mobile Oil

Corporation, 453 U.S. 374, 486 n.16 (1981).

This Court followed that general rule in

-20-

DelCostello, supra. It determined a new

rule of law, i.e., the six months statute

of limitations found in 29 U.S.C. §160(b)

should govern §301 actions against both

the employer and the union, and then ap-

plied this new rule to the case before it.

Both the Sixth Circuit, in Smith v. Gen-

eral Motors Corporation, 747 F.2d. 372

(6th Cir. 1984) (en banc), and the Second

Circuit, in Welyczko v. U.S. Air, Inc.,

733 F.2d 239 (2nd Cir. 1984), cert. denied,

U.S. 105 S.Ct. 1512 (1984), have

found that the holding of DelCostello

should be applied retroactively because

this Court chose in DelCostello to apply

the new rule to the case before it, which

amounted to a retroactive application of a

new statute of limitations.

As petitioner points out, how-

ever, the traditional means of determin-

ing whether a decision should be applied

=2i-

retroactively in a civil case is to un-

dertake the three step analysis. set

forth in Chevron Oil Company v. Huson,

404 U.S. 97, 106-07 (1971). This Court

directed in the Chevron case that three

issues be addressed: (1) does the deci-

sion represent a "clear break" with past

law; (2) would retroactive application

further or retard operation of the new

rule; and (3) could retroactive appli-

cation "produce substantial and inequi-

table results." Id.

In Perez v. Dana Corporation

Parish Frame Division, 718 F.2d 581

(3rd Cir. 1983), the decision relied

upon by the district court in this case,

the Third Circuit used the Chevron anal-

ysis to find that DelCostello should be

applied retroactively. See also Scott

v. Local 863, International Brotherhood

@22@

of Teamsters, 725 F.2d 226, 228-229 (3d

Cir. 1984).

As the Third Circuit pointed out

in Perez, supra, analysis done under the

first prong of the Chevron decision clear-

ly favors retroactive application of

DelCostello since there was no "clear past

precedent on which the litigants may have

relied." 718 F.2d at 585. The Perez

court found that the caselaw in the Third

Circuit and in the other courts of appeals

on the issue of the applicable statute

of limitations for hybrid-301 fair repre-

sentation actions was erratic and incon-

sistent.’ Id. at 586. The Perez court

described the caselaw regarding the applic-

able statute of limitations in a §301l

7. The Perez decision also pointed to the

comment in Falsetti, supra, that sug-

gested that the six month limitations

period in the NLRA might apply to

some §301 actions.

-23-

action as “a legally chaotic situation."

Id., quoting Lawson v. Truck Drivers Local

Union #100, 698 F.2d 250, 254 (6th Cir.

1983). It found that any reliance on this

uncertain caselaw would not be reasonable,

particularly in light of the decision in

United Parcel Service v. Mitchell, supra

and Liotta v. National Forge Company,

supra, discussed above.

The second prong of the Chevron

analysis requires a court to determine

whether retroactive application would

further or retard operation of the new

rule. As the Third Circuit pointed out

in the Perez decision, retroactive appli-

cation of the six months limitation period

would appear to serve the purposes, iden-

tified by this Court, underlying the

holding of DelCostello: (1) the need for

uniformity; (2) the need to provide an

aggrieved emp loyee with satisfactory

-24-

opportunity to vindicate his rights; and

(3) the desire for relatively rapid final

resolution of labor disputes. DelCostello

v. International Brotherhood of Teamsters,

462 U.S. 151, 162, 168-171 (1983).

The final prong of the Chevron

analysis requires consideration of whether

application of the new rule would be in-

equitable. In the instant case, as in the

Perez case, no inequity has occurred by

applying the holding of DelCostello.®/ in

this case, the petitioner waited five

8. In his brief, petitioner incorrectly

attempts to distinguish the facts of

his case from those found in Perez v.

Dana Corporation Parish Frame Divi-

sion, vit

The petitioner writes that the Perez

case involved an appeal from an arbi-

trator's decision. This is simply

not correct. Like petitioner, Mr.

Perez unsuccessfully requested his

union to submit to arbitration his

claim that his employer had breached

the collective bargaining agreement.

718 F.2d at 583.

-25-

F.2d 581 (3rd Cir. 1983).

years and four months after his dismissal

from Westinghouse to file an action in

federal court. By his own account, he

waited almost a year to find out whether

the union had pursued his grievance. More-

over, from the time of his dismissal in

January 1979 until the determination by

this court in DelCostello in 1983, the

caselaw regarding the applicable statute

of limitations in hybrid-301 fair repre-

sentation cases was "legally chaotic."

Given the decision in Liotta, supra, in

1980, petitioner should have been on no-

tice that it was possible that Pennsyl-

vania's ninety (90) day statute of limi-

tations for vacation of arbitration awards

might apply to his case. In any event,

the caselaw in the federal courts of Penn-

sylvania was not such when the alleged

@26e

9/

cause of action accrued,— in either 1979 V. CONCLUSION

or 1980, that Mr. Saville reasonably could | For the foregoing reasons, the

have believed that he could sit on his Petition for Writ of Certiorari should be

rights for over five years and preserve denied.

his §301 claims against the union and his

Respectfully submitted,

former employer.

DONA S. KAHN, ESQUIRE

ALISON PEASE, ESQUIRE

) Attorneys for Respondent

| Westinghouse Electric Corporation

DATE

|

9. It is unclear when petitioner's al- OF COUNSEL:

leged cause of action for breach of

the collective bargaining agreement ) HARRIS AND KAHN

accrued. However, the decision in 14th Floor

Scott v. Local 863, international 1600 Market Street

Brotherhood of Teamsters, 725 F.2d Philadelphia, PA 19003

226, 228 (3d Cir. 1984), holds that a :

cause of action accrues when the

plaintiff realizes the futility of

any further internal appeal procedure

with the union. In this case, peti-

tioner's cause of action under that

reasoning, accrued sometime in early

1980.

-27- -28-

Pursuant to Rule 28.1 the fol- 15. Mitsubishi Nuclear Fuel Co.,

Ltd.

j re partially owned subsidiaries of

oe , ' 16. Motores Electricos de

Westinghouse Electric Corporation, Inc.: Juarez S.A. de C.V.

17. O'Connor Combustor Corpora-

l. Compagnie des Dispositifs tion

ducteurs Westinghouse (CDSW)

eens , 18. Ottermill Chilton Limited

2 Electrocontroles Villares, |

Ltda. ‘JEVL) 19. Ottermill Products Limited

3. Eletromar Industria Ele- 20. Schneider S.A.

Brasileira, S.A.

7 ' 21. Sentec Corporation

4. Eletromar Nordeste, S.A.

22. Serratosa & Castello, S.A.

S- Email Limited

23. Siam di Tella, Ltd. (Argen-

6. Ercole Marelli & Company, tina)

— eihe . .

=P 24. Siam di Tella, Ltd. (Uru-

Ve Escorts, Ltd. guaya)

8. Franco Tosi S.p.A. 25. Silectra S.A. de C.V.

9. Galileo Argentina C.I.S.A. 26. Toshiba Westinghouse Elec-

tronics Corporation

10. Galileo Uruguaya, S.A. . a

27. Tyree Industries Limited

ll. Industria IEM, S.A. de C.V.

28. Westralian Transformers Pty.

12. Mecanica Pesada, S.A. Limited (W.T. Engineering Pty. Limited)

13. Mex Controi S.A. de C.V. 29. Westralian Transformers Pty.

Limited (Westrans (W.A.) Pty. Limited)

14. Mitsubishi Electric Corpo-

ration 30. Tyree-Power Construction

Limited

-29- -30-

31. Vektron S.A.

32. w.S. Insulators

33. Porta Pack Corporation

34. Bridgeport Community An-

tenna TV Co.

1} Cable TV General, Inc.

36. El Paso Cablevision, Inc.

37. Filmation Associates

38. Focus Cable of Oakland, Inc.

39. Grosse Point Cable, Inc.

40. Group W Cable of Columbia

Heights/Hilltop, Inc.

41. Group W Cable of Lorain

County, Inc.

42. Group W Cable of St.

Bernard, Inc.

43. Piedmont Cablevision, Inc.

44. Saw Mill River Cablevision,

Inc.

45. Southwest Video Corp.

(d/b/a/ Group W Cable)

46. Telecom Cablevision, Inc.

47. Westinghouse Canada Inc.

=3)i<

48.

bucion Trade,

de Venezuela,

49.

lurgicas C.A.

Transformadores de Distri-

S.A. (TRADESA) (Westinghouse

S.A. (VENWESA) )

Westinghouse Electro Meta-

(WEMCA) (Westinghouse de

Venezuela, S.A. (VENWESA) )

5C.

S.A. (INDELEC)

Industrias Electronicas,

(Westinghouse de Venezuela,

S.A. (VENWESA) )

Si. CMW Sistemas, Ltda. (CMWS)

(Westinghouse do Brasil S.A. (WEBSA) )

52. CMW Equipamentos, Ltda.

(CMWE) (Westinghouse do Brasil S.A.

(WEBSA) )

53. Eletromar Industria Elec-

trica Brasileria, S.A. (Westinghouse do

Brasil S.A. (WEBSA) )

54. Industry Services Company

of Saudi Arabia, Ltd. (ISCOSA)

55. Galileo Argentina, C.I.S.A.

56. Galileo Uruguaya, S.A.

57. Westinghouse, S.A. (WESA)

58. Iberatomica (Westinghouse,

S.A. (WESA) )

59. Westinghouse Projectos Elec-

tricos, S.A. (WEPESA) (Westinghouse, S.A.

(WESA) )

60. Westinghouse Asia Controls

Corp.

=32-

61.

S.p.A.

62.

inghouse Irish

63.

Tesisati, A.S.

64.

Ltd.

65.

Ltd.

66.

ply Company of

67.

68.

(IEM S.A.)

69.

S.A.)

70.

(IEM S.A.)

ve

Ltd.

72

Ltd.

73.

74.

Ltd. (WSAL)

75.

Ercole Marelli & Company,

CDSW Ireland Limited (West-

Holdings Limited)

Elektrik Techizati Imalti

Korea Industry Services Co.,

Hyosung Heavy Industries,

Westinghouse Electric Sup-

Saudi Arabia (WESCOSA)

IEM S.A.

Mex Control, S.A. de C.V.

Silectra, S.A. de C.V. (IEM

Industria IEM, S.A. de C.V.

WEXICO Systems and Services,

China Industry Services Co.,

Transformadores TPL S.A.

Westinghouse Saudi Arabia

Metzenauer & Jung GmbH

-33-

76. Electro - Fanal S.A. (Met-

zenauer & Jung GmbH

77. Mitsubishi-Westinghouse

Electric SGC, Ltd.

78. Cemac Westinghouse Pty. Ltd.

(Westinghouse Electric Australia Holdings

Limited)

79. Contradores Electricos, C.A.

(Westinghouse Electric Company, S.A.

(WECOSA) )

80. Westinghouse Saudi Arabia

Ltd. (WSAL)

81. Westinghouse (Jamaica) Ltd.

82. Westinghouse Projectos Elec-

tricos, S.A. (WEPESA)

83. Westinghouse, S.A.

84. Ateliers de Constructions

Electriques de Charleroi S.A. (ACEC) (West-

inghouse World Investment Corporation)

85. Galileo Argentina, C.I1.S.A.

(Westinghouse World Investment Corporation)

86. Galileo Uruguaya, S.A.

(Westinghouse World Investment Corporation)

87. Mitsubishi Electric Corpo-

ration

-34-

PROOF OF SERVICE

DONA S. KAHN, ESQUIRE, on oath

deposes and states that on the day of

July, 1985, three copies of the Petition

for Writ of Certiorari were served by

first class mail, postage prepaid, on

David R. Black, Esquire, 221 North Olive

Street, Media, PA 19063, and Robert Z.

Lewis, Esquire, 11 East 5lst Street, New

York, New York 10022, and Ira J. Katz,

Esquire, 1200 Walnut Street, Philadelphia,

PA 19107, and that all parties required to

be served have been served.

DONA S. KAHN, ESQUIRE

ALISON PEASE, ESQUIRE

Attorneys for Respondent

Westinghouse Electric Corp.

SUBSCRIBED AND SWORN TO

before me this day

of July, 1985.

NOTARY PUBLIC

OPPOSITION

BRIEF

Raymonp L. Savuz, Jz.,

Petitioner,

vs.

Westinenovuse Execrric Corp. and Untrep Execrricat,

Raprio anp Macurne Workers or America (UB),

Looau 107,

Responden!s.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIROUIT

BRIEF OF RESPONDENT UNITED ELECTRICAL,

RADIO AND MACHINE WORKERS OF AMERICA

(UE), LOCAL 107 IN OPPOSITION

Roszrat Z, Lewis

11 East 5lst Street

New York, N.Y. 10022

(212) 753-1960

Ina J. Katz

1200 Walnut Street

Philadelphia, PA 19107

(215) 735-2410

Attorneys for the Union

Counterstatement of the Question Presented

Should this Court grant this Petition for Writ of Cer-

tiorari to review a decision of the United States Federal

Court of Appeals for the Third Circuit affirming the dis-

missal by a federal district court of a complaint on the

ground that it had not been filed within the six month limi-

tation period established by this Court in Del Costello vy.

International Brotherhood of Teamsters, 462 U.S. 151, 103

S.Ct. 2281 (1983) and applied retroactively in accordance

with Perez v. Dana Corporation, Parish Frame Division,

718 F.2d 581 (1983)?

TABLE OF CONTENTS

PAGE

Counterstatement of the Questions Presented i

Counterstatement of the Case... ti‘; 1

Reasons for Denying the Writ 3

eet 6

ee la

TasL_e or AUTHORITIES

Cases:

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) _. 4

Del Costello v. International Brotherhood of Teamsters,

462 US. 151, 103 S.Ct. 2281 (1983) i, 2, 3, 4,5

Edwards v. Teamsters Local Union No. 36. 719 F

1036 (9th Cir. 1953)... er “2 4,5

Edwards v. Sea-Land Service. Inc.. 720 F

Cir. 1983) este ec prec 4

Glover v. United Grocers, Inc., 746 F.2d 1380 (9th Cir

~~ 5

Graves v. Smith’s Transfer Corp., 736 F

pny anathpsiccatin: a

Hand v. International Chemical Workers Union

, 712

F.2d 1350 (11th Cir. 1983) 4

Hines v. Anchor Motor Freight, Inc., 424 US. 554

GED ccccssassscssssererssusiiisiiiliibiiiaiaaiadeetees 2

Landahl v. PPG Industries. Inc., 746 F

Gln, BED nae ee ~ sms 4

PAGE

Lincoln v. District 9, 723 F.2d 627 (8th Cir. 1983) ........ 4

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

(4th Cir, 1983) .nn.-n-cn-ceeccecoeeecseeeeeeeeseseeseeenseeseneeneens 4

Perez v. Dana Corp., Parish Frame Division, 718 F.2d

SG (Brad Cir. 1963) .............-.-....--------e-cee-seneeeeee= i, 2, 3, 4,5

Price v. Southern Pacific Transportation Co., 568 F.2d

T5O (Sth Cir, 1978) .nn..-.----.----sec-cceersecenseeenseeessneensees 5

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

I acne eccceeceesne ese scczwcnnwnnnenneneregeerensnsenenseeenenees 4

Smith v. General Motors Corp., 747 F.2d 372 (6th Cir

OI rcs sees sncensevewenvcarenvewenscnsersennconencenvoneerencensone 3,4

Storck v. International Brotherhood of Teamsters, 712

F.2d 1194 (7th Cir. 1963) ~..............-........-----ssceeeseeeeseee= 4

United Steel Workers v. Flowers, 462 U.S. 151, 1038

|) | 0U UD) 4

Vaca v. Sipes, 386 U.S. 171 (1967)... 2

Welyceko v. U.S. Air, Inc., 733 F.2d 239 (2nd Cir.

WOR nina nnnenn nn nnwn enn nnenengesnsnnennvnnsnveneenrensarenncene 4

Woolett v. Bankers Life Co., 572 F. Supp. 650 (E.D

Michigan, 1983) ............------------1sssssecsesseseseeenseeeneeeeenee 3

Statutes:

Judiciary & Judicial Procedure—

@ Pa. CBA. ¢ S087(8) ...................-..------.---------------- 3

National Labor Relations Act—

= USC. 4160) ——...........----.----------.------------------- 2

2

claim” or a “Vaca-Hines action”. Vaca v. Si

, . Stpes, 386 U.S.

171 (1967); Hines v. Anchor Motor Freight, Inc., 4

Hp nel ght, Inc., 424 U.S.

Both defendants moved to dismiss on the ground, inter

alia, that the action was barred by the applicable statute

of limitations. The District Court, by Memorandum Opin-

ton and Order (Petitioner’s Appendix, pp. 3, 7), dated

August 17, 1984, dismissed the Complaint as untimely be-

cause it had been filed long after the lapse of the six month

limitation period set forth in 29 U.S.C. Section 160(b) and

adopted for Vaca-Hines suits by this Court in Del Costello

supra. The Court of Appeals for the Third Circuit affirmed

without opinion by Judgment Order dated March 21, 1985

(Petitioner's Appendix, p. 1) and applied the Del Costello

SIX month limitation period retroactively in accordance

with Perez v. Dana Corporation, supra.

Sixty-four months elapsed between the Petitioner’s dis-

charge and the filing of the Complaint. According to the

Complaint, the Union had failed, refused or neglected to

pursue the grievance filed against Westinghouse’s discharge

action and by reason of this failure to pursue the con-

tractual grievance procedure the Union had denied the

Petitioner the opportunity to present the grievance to an

arbitrator (Union Respondent’s Appendix, p. 6a, para-

graphs XI, XIII). Thus, the cause of action acerued

shortly after the discharge, and it is obvious that the six

month limitation period of National Labor Relations Act

29 U.S.C. § 160(b) had been exceeded.

The Petition, however, states that Saville learned “more

than a year after he was terminated” that the Union had

decided not to take his grievance to arbitration although

it had promised to do so (Petition, p. 7). Assuming the

truth of this assertion, arguendo, it is clear that the Com-

plaint was filed more than four years after Saville alleged

that he had learned of the Union’s refusal to arbitrate

wo too, the six month limitation period had been ex-

3

Thus, the facts of this case are practically identical in

all respects with those considered by the Third Circuit

Court in Perez, supra, except that the Petitioner here de-

layed in taking his Complaint to court for a far longer

period than that confronted by the Third Cireuit in Perez.

Despite the belief of Petitioner (Petition, p. 19), Perez

does not involve an appeal from an arbitrator’s decision.

There had been no arbitration in the Perez case, as there

has been none in this proceeding.

Reasons for Denying the Writ

Petitioner argues that the Writ should be granted be-

cause of a serious conflict between the Courts of Appeals

of the Third and Ninth Circuits about retroactive applica-

tion of the six month period of limitation adopted by this

Court in Del Costello, supra, June 8, 1983. Perez v. Dana

Corporation, supra; Edwards v. Teamsters Local Union

No. 36, 719 F.2d 1086 (9th Cir. 1983, cert. den. 104 S.Ct.

1599). Petitioner also states that Perez is in conflict with

lower court decisions in other circuits, citing Woolett v.

Bankers Life Co., 572 F. Supp. 650 (E.D. Michigan, 1983).

However, the Court of Appeals for the Sixth Cireuit has

held, since Woolett issued, for retroactive application of

Del Costello. Smith v. General Motors Corp., 747 F.2d 372

(1984).

The Petitioner urges that the Edwards approach be ac-

cepted and that, if it were to be, the state’s statute of limi-

tations he contends is appropriate would be the six years

applied to written contracts (42 Pa. C.S.A., Section

5527 (2)).

The Writ should be denied for the reasons stated below.

The Petition suggests a cataclysmic polarity between the

Third and the Ninth Circuits exclusively. But the Ninth

Cireuit is alone in withholding retroactive application in

Del Costello. The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, Sth and

4

llth Cireuits have held otherwise. Graves v. Smith’s

Transfer Corp., 736 Fed. 819 (1st Cir., 1984); Welyceko

v. U.S. Air, Inc., 733 F.2d 239 (2nd Cir. 1984); Perez v.

Dana Corp., Parish Frame Division, 718 F.2d 581 (3rd Cir.

1983) ; Murray v. Branch Motor Express Co., 723 F.2d 1146

(4th Cir. 1983); Edwards v. Sea-Land Service, Inc., 720

F.2d 857 (5th Cir. 1983); Smith v. General Motors Corp.,

747 F.2d 372 (6th Cir. 1984); Landahl v. PPG Industries,

Inc., 746 F.2d 1312 (7th Cir. 1984); Storck v. International

Brotherhood of Teamsters, 712 F.2d 1194 (7th Cir. 1983) ;

Lincoln v. District 9, 723 F.2d 627 (8th Cir. 1982); Rogers

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

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

1350 (11th Cir. 1983).

Most of the circuit courts applying Del Costello retro-

actively did so upon the basis of the analysis provided to

them by this Court in Chevron Oil Co. v. Huson, 404 U.S.

97, 106-107 (1971). This three-part analysis asks: (1)

whether the decision represents a “clear break” with past

law; (2) whether retroactive application would further or

retard operation of the new rule; and (3) whether retro-

active application would “produce substantial inequitable

results.” However, two of the circuit courts found it to be

unnecessary to apply the Chevron analysis beceuse of their

belief that the Supreme Court had implicitly held in Del

Costello that the statute of limitations should be applied

retroactively by barring the claims that were in front of

the Court. Smith v. General Motors Corp., supra (p. 375) ;

Welyceko v. U.S. Air, Inc., supra (p. 240). In Rogers *

Lockheed-Georgia Co., the 11th Cireuit Court of Appeals

recognized that Del Costello and its companion case, United

Steel Workers v. Flowers, 462 U.S. 151, 103 S.Ct. 2281

(1983) had given retroactive application to its ruling, but

the 11th Circuit also applied the Chevron analysis.

The Perez and Edwards courts both applied the Chevron

test for retroactivity. In the 3rd Circuit it was determined

5

that there was no clear past precedent on which Perez could

have reasonably relied in waiting 23 months to file his suit.

Perez, supra (at pp. 585-586). Of course, Saville had no

clear past precedent on which to rely for waiting 48 to 64

months in which to file his Complaint. The 9th Cirenit

decided, however, in Edwards, supra (at p. 1040), that Del

Costello effectively overruled the specific case, Price v.

Southern Pacific Transportation Co., 568 F.2d 750, 753

(1978) which constituted a precedent for using a three-

year statute of limitations in the case of a discharged em-

ployee suing a union for its failure to fairly represent.

The 9th Circuit found that Edwards could reasonably have

relied on Price in filing his action. Edwards, supra (p.

1040). There appears to be a conflict in the results be-

tween Perez and Edwards, but not one of principle.

That an analysis of the state of the decisional law in one

circuit may lead to different conclusions from an analysis

of the decisional law of another circuit when the difference

rests in variation between the decisional law of each, shouid

create neither wonder nor a conflict between circuits war-

ranting the attention of this Court.

Moreover, the limitation period in the 3rd Cireuit rela-

tive to Vaca-Hines actions, prior to the issuance of Del

Costello, may have been that applicable in actions to vacate

arbitration awards. Perez, supra (at p. 583). This period

is shorter than the 10(b) limitation period adopted in Del

Costello. The 9th Circuit would apply Del Costello retro-

actively in this situation because it does not regard retroae-

tive application of a longer limitation period to be inher-

ently unfair. Glover v. United Grocers, Inc., 746 F.2d 1380

(9th Cir., 1984) ; Edwards v. Teamsters Local No. 36, supra

(at p. 1040).

6

CONCLUSION

The Petition for Writ of Certiorari should be denied for

the reasons indicated.

Respectfully submitted,

Dated: July 18, 1985.

Roeert Z. Lewis

11 East 5lst Street

New York, N.Y. 10022

(212) 753-1960

Ina J. Katz

1200 Walnut Street

Philadelphia, PA 19107

(215) 735-2410

Attorneys for the Union

la

Complaint for Damages, Injunctive and Declaratory

Relief, and Other Appropriate Relief:

Demand for Jury Trial

Dav R. Buiack, Esquire

221 North Olive Street

Media, Pennsylvania 19063

(215) 566-8121

LD. 24405

Attorney for Plaintiff

UNITED STATES DISTRICT COURT

Eastern District or Pennsy.vaNia

Civil No.

Rayrmonp L. Savuze, Jr.

22-1 Sandalwood Drive

Newark, Delaware 19713

Plaintiff

vs.

Westincuouse Exvectric Corporation

Lester, Pennsylvania 19113

and

Unsrrep Execrraica, Rapio anp Macnixe Workers

or America, Locat 107

710 East Third Street

Essington, Pennsylvania 19029

I

NaTURE oF THE (Ase

This is an action brought by an electrical worker against

his former employer, Westixcnovse Exectric Corporation

2a

Complaint for Damages, Injunctive and Declaratory

Relief, and Other Appropriate Relief:

Demand for Jury Trial

(hereinafter Westincnouse) and the Unirep ELectricaL

Rapro ann Macurwe Workers or America (hereinafter

Execrrica, Workers), alleging that he was unlawfully

terminated as a result of his former employer’s practices

of discrimination on the basis of mental handicap in vioc-

lation of the employer’s own stated policies. In addition,

Plaintiff alleges claims for damages for breach of the

written collective bargaining agreement between WestTiNo-

House and Execrrica, Workers.

By this action Plaintiff seeks money damages for lost

wages and benefits, liquidated, compensatory and punitive

damages, and injunctive and declaratory relief, including

orders requiring Defendant Westincnovse to reinstate

Plaintiff, and requiring Defendant Execrrica, Workers

to proceed through its grievance procedure to have Plain-

tiff reinstated by Westincnouss, and requiring Defendant

Westincuovuse to take action to modify its practices affect-

ing Plaintiff which result in unlawful discrimination based

on handicap.

II

JURISDICTION

Jurisdiction over this action is based upon Title 28 U.S.C.

§1332 (diversity of citizenship), 1337, 1343 (4).

ITI

Plaintiff is a citizen of the State of Delaware. Defendant

WestincHovse is a corporation incorporated under the

laws of the State of Pennsylvania and having its principal

place of business in the State of Pennsylvania. Defendant

Exectrica Workers is an unincorporated association hav-

ing its principal place of business in the State of Pennsyl-

3a

Complaint for Damages, Injunctive and Declaratory

Relief, and Other Appropriate Relief:

Demand for Jury Trial

vania. The matter in controversy exceeds, exclusive of i

’ in-

terest and costs, the sum of ten thousand dollars. :

IV

Frest Cram vor Rewer

Saville vs. Westinghouse

Plaintiff was hired by Defendant Westincuovse in March

of 1969 for the position of janitor’s aide and assigned at

Defendant’s plan facility at Lester, Pennsylvania. On _

uary 12, 1979, after a total of nine years and ten months

of wholly satisfactory, competent and diligent performance

of duties to his employer’s profit, Plaintiff was terminated

by Defendant WestincHouse on the basis of a mental handi-

eap which bore no relation to his job performance.

Vv

Defendant’s termination of Plaintiff was undertaken in

violation of Defendant's own stated policies of employing

qualified indivi .als without regard to physical or mental

handicaps ; the termination also violated the written agree-

ment then in effect between Defendant Westinanovuse and

Defendant Execraica, Workers, dated June 16, 1973, re-

specting the employment of Union members which ineluded

VI

From time to time during Plaintiff's em

ployment with

Defendants, Defendant Westinghouse published its per-

sonnel policies and procedures, including a document titled

“Reaffirmation of the Handicapped/Veterans Policies”.

This published document states:

4a

Complaint for Damages, Injunctive and Declaratory

Relief, and Other Appropriate Relief:

Demand for Jury Trial

It is the policy of Westinghouse to employ qualified

individuals without regard to physical or mental handi-

caps or degrees of handicap which are not relevant

to satisfactory job performance. Westinghouse will

take affirmative action to employ and advance in em-

ployment qualified handicapped individuals at all levels

of employment including the executive level, and other-

wise treat qualified handicapped individuals without

discrimination based upon their physical or mental

handicap in all employment practices such as the fol-

lowing: hiring, up-grading, demotion or transfer; re-

cruitment or recruiting advertising; layoff or termina-

tion; rates of pay or other forms of compensation;

selection for training.

These commitments were further supplemented by other

written and oral commitments to Plaintiff which all became

part of the total employment agreement between Plaintiff

and Defendant Westinghouse.

Vil

As a proximate result of Westixcnovse’s breach of its

agreement with Plaintiff and its willful, knowing and in-

tentional discrimination against Plaintiff, Plaintiff has sus-

tained and continues to sustain substantial losses in earn-

ings, retirement benefits, and other employment benefits

and has suffered and continues to saffer humiliation and

mental and physical pain and angvish, all to his damage

in a sum exceeding thirty thousand dollars.

In light of Defendant's willful, knowing and intentional

discrimination against Plaintiff, Plaintiff seeks an award

of liquidated damages equal to the amounts found owing

and an award of punitive damages in the amount of sixty

thousand dollars.

da

Complaint for Damages, Injunctive and Declaratory

Relief; and Other Appropriate Relief:

Demand for Jury Trial

Vul

Plaintiff has no plain, adequate, or complete remedy at

law to address the wrongs alleged herein, and this suit for

Gociaretory and injunctive relief, as well as compensatory

punitive damages, is his only means of i -

quate relief. ’ paid

Ix

Seconp CLaim ror Rewier

Saville vs. Electrical Workers

Defendant Electrical Workers is a labor union certified

by the National Labor Relations Board as the lawfully

designated exclusive bargaining representative of electrical

workers employed by Defendant Westinghouse. Since the

beginning of Plaintiff's employment for Defendant Westing-

house, Defendant Electrical Workers has served as the ex-

clusive representative of Plaintiff for the purpose of col-

lective bargaining in respect to rates of pay, wages, hours

of employment and other conditions of employment.

of Defendant Electrical Workers. Plaintiff did, in

become a member of Electrical Worners and elie

remained a member of in good standing at all times dur-

ing his employment. Plaintiff duly paid dues as required

by Defendant’s rules and otherwise complied with all of

Defendant's rules and regulations generally applicable to

xX

On or about June 16, 1973, Defendant Electrical Workers,

acting for its members, including Plaintiff, reached a cer-

ba

Complawmt for Damages, Injunctwe and Declaratory

Relief, and Other Appropriate Relief :

Demand for Jury Trial

tain written collective bargaining agreement with pn

dant Westinghouse concerning pay and conditions of em-

yment.

oe Agreement states at page three:

Secrios [V—DtscriMin ation

3. The Union agrees that neither it nor its locals nor

the respective officers and members, nor persons em-

ployed directly or indirectly by the Union or its Locals

will diseriminate against any employee... .

The Agreement also established a grievance ——

a procedure for arbitration of disciplinary matters. “4

these procedures, Defendant Electrical Workers was

represent such of its members who became involved in any

dispute arising out of their employment at Westinghouse.

xl

At the time Plaintiff was wrongfully terminated by De-

fendant Westinghouse on January 12, 1979, Plaintiff filed

a grievance with Defendant Electrical Workers in aceord-

ance with Defendant’s rules and regulations but, despite

Plaintiff's request of Defendant for assistance in pursuing

this grievance, Defendant Electrical Workers failed, re-

fused or neglected to pursue Plaintiff's grievance against

Defendant Westinghouse.

XII

By reason of the failure of Defendant Electrical Work-

ers to represent Plaintiff by following the grievance pro-

between Defendant

cedures provided by the Agreement dat

Westinghouse and Defendant Electrical Workers, Plaintiff

has been denied the opportunity to present his grievance

7a

Complaint for Damages, Injunctive and Declaratory

Relief, and Other Appropriate Relief:

Demand for Jury Trial

to Defendant Westinghouse or to a neutral arbitrator, and

therefore has been denied the opportunity to be reinstated

in his employment. As a proximate result of Defendant

Electrical Workers’ breach of its Agreement with Plaintiff

and its fiduciary duty as exclusive representative of Plain-

tiff, Plaintiff has sustained and continues to sustain sub-

stantial losses in earnings, retirement benefits and other

employment benefits and has suffered and continues to

suffer humiliation and mental and physical pain and an-

guish, all to his damage in a sum exceeding thirty thousand

dollars ($30,000.00). Plaintiff seeks an award of liquidated

damages equal to the amounts found owing and, owing to

the breach by Electrical Workers of its fiduciary duty to

Plaintiff, Plaintiff seeks an award of punitive damages in

the amount of sixty thousand dollars ($60,000.00).

Wuenerorg, Plaintiff Raymond L. Saville, J r., prays for

judgment in its favor and requests that the Court grant

to it the following relief against Defendants Westinghouse

Electric Corporation and United Electrical Radio and

Machine Workers of America:

A. Enter a declaratory judgment that Defendant West-

inghouse violated its own policies, agreements and covenant

of fair dealing, with Plaintiff in terminating Plaintiff's

employment ;

B. Enter a permanent injunction enjoining Defendant

Westinghouse and directing Defendant Westinghouse to

reinstate Plaintiff to the employment from which he was

terminated without a break in service and to restore to him

all wages, retirement benefits, and other employment bene-

fits due from his date of termination;

C. Award to Plaintiff money damages in a sum in ex-

cess of thirty thousand dollars ($30,000.00) in compensa-

Sa

Complaint for Damages, Injunctive and Declaratory

Relief, and Other Appropriate Relief:

Demand for Jury Trial

tory damages and a sum in excess of sixty thousand dollars

($60,000.00) in punitive damages ;

D. For Defendant Electrical Workers’ breach of its

Agreement with Plaintiff and its fiduciary duty toward

Plaintiff, award to Plaintiff money damages in excess of

thirty thousand dollars ($30,000.00) for compensatory dam-

ages and in excess of sixty thousand dollars ($60,000.00)

in punitive damages ;

E. Award to Plaintiff his costs of suit, including reason-

able attorneys fees;

F. Award to Plaintiff such other and further relief as

the Court deems just and proper.

Dated: 5/17/84

Respectfully submitted,

/s/ Daviw R. Brack

Davm R. Brack, Esquire

221 North Olive Street

Media, Pennsylvania 19063

(215) 566-8121

Attorney I.D. 24405

Attorney for Plaintiff

Raymond L. Saville, Jr.

SUPREME COURT OF THE UNITED STATES

LAWRENCE FEIN v. PERMANENTE

i MEDICAL GROUP

ON APPEAL FROM THE SUPREME COURT OF CALIFORNIA

No. 85-19. Decided October 15, 1985

The appeal is dismissed for want of a substantial federal

JUSTICE WHITE, dissenting.

Cal. Civ. Code Ann. § 3333.2 (West) establishes a $250,000

in medical malpractice actions and medical malpractice in-

The California Supreme Court affirmed, rejecting appel-

lant’s challenge that § 3333.2 contravenes both the Due Proc-

ess and Equal Protection clauses of the federal Constitution.

The court found no Due Process violation based on the theory

that “the Legislature retains broad control over the measure

as well as the timing of damages that a defendant is obligated

to pay and a plaintiff is entitled to receive, and. . . the Legis-

i

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