# Record and brief — Saville v. Westinghouse Electric Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0949%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1985 - **Citation:** 474 U.S. 911 ## Text 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-. 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 ‘ Baia piatityee tel | A aE | el Helle ee - He Hl tp ied Hl ; tlre Hoi i HHL de : Hit Heat nH ni wii te eet i Helatingn El fit hy i Ht rer EE é| 1 Hil be layeel tl MG lie hi i 4 ial HHT aa --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0949%3A0. Public record. Not legal advice.