Opposition Brief — Yellow Freight System, Inc. v. United States

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No. 91-1938

9 RO ont re ee ensmm ene:

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Cc ry

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Jn the Supreme Court of the Cinited States

OCTOBER TERM, 1992

YELLOW FREIGHT SYSTEM, INC., PETITIONER

Uv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

WILLIAM KANTER

ROBERT M. LOEB

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

preme

QUESTION PRESENTED

Whether the district court had jurisdiction under the

All Writs Act, 28 U.S.C. 1651, to enforce the consent

decree entered in this case, and the court-ordered Elec-

tion Rules entered pursuant to that decree, against

actions by third parties that threatened the decree.

(I)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

C‘ases:

Lechmere, Inc. v. NLRB, 112 S. Ct. 841 (1992) oo...

Local No. 8-6, Oil Workers Int’l Union v. Missouri, 361

a age wy Sncocaciecsten eve

Preiser v. Newkirk, 422 U.S. 395 (1975) ..........................

San Diego Building Trades Council vy. Garmon, 359 U.S.

lt ae A ePRGUAs da dhulcaeis siden icekiaananhstaskedcen esas

Star Market Co. v. United States, No. 91-1674 (June 22,

tact dia vadns evacsagnpecearsavberdnakvoutaandsvaernaet

United States v. IBT:

723 F. Supp. 203 (S.D.N.Y.), appeal dismissed, No. 89-

6252 (2d Cir. 1989), cert. denied, 496 U.S. 925 (1990).

742 FF. Supp. 94 (S.D.N.Y. 1990), aff'd, 931 F.2d 177 (2d

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941 F.2d 1292 (2d Cir. 1991), cert. denied, 112 S. Ct.

as oc ciecenpnatiesussdwnvabegenvdaces

Weinstein v. Bradford, 423 U.S. 147 (1974) «0.0.0...

Statutes:-

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National Labor Relations Act, 29 U.S.C. 158(a)(1) ...000.....

Racketeer Influenced and Corrupt Organizations Act, 18

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(111)

In the Supreme Court of the Chuted States

OCTOBER TERM, 1992

No. 91-1938

YELLOW FREIGHT SYSTEM, INC., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The court of appeals’ opinion (Pet. App. A1l-A35) is re-

ported at 948 F.2d 98. The district court’s opinion (Pet.

App. A36-A45) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

February 14, 1992. On February 26, 1992, Justice

Thomas extended the time within which to file a petition

for a writ of certiorari to and including May 29, 1992

(Pet. App. A103), and the petition was filed on that date.

The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

1. In June 1988, the United States filed a civil action

under the Racketeer Influenced and Corrupt Organiza-

tions Act (RICO), 18 U.S.C. 1961 ef seg., against the

International Brotherhood of Teamsters (IBT) and mem-

bers of the IB'T General Executive Board. The complaint

alleged that the IBT had long been under the control of

organized crime and sought equitable relief to rid the

union of such control. See Pet. App. A5; United States v.

IBT, 905 F.2d 610, 612-618 (2d Cir. 1990). In March 1989,

the parties agreed to settle the action and stipulated to

the entry of a consent decree incorporating the terms of

their settlement agreement. Pet. App. A5.

The principal goal of the settlement and the consent

decree is to wrest the union from the influence of

organized crime and to establish a new system of rank-

and-file elections. Pet. App. A5-A6; United States v.

IBT, 931 F.2d 177, 180-181 (2d Cir. 1991). Pursuant to the

consent decree, the district court appointed three offi-

cers: an Independent Administrator to oversee the de-

cree’s remedial provisions; an Investigations Officer to

investigate and prosecute disciplinary charges against

corrupt IBT members; and an Election Officer to oversee

and certify the election process. Pet. App. A5-A6, A69-

A771; United States v. IBT, 941 F.2d 1292, 1294 (2d Cir.

1991), cert. denied, 112 S. Ct. 1161 (1992); United States v.

IBT, 905 F.2d at 6138.

The consent decree empowered the Election Officer to

“supervise” the 1991 IBT election process. Pet. App.

A76-A77. The district court that entered the decree

determined that the Election Officer’s supervisory

powers include the “right to promulgate electoral rules

and procedures.” United States v. IBT, 723 F. Supp. 203,

207 (S.D.N.Y.), appeal dismissed, No. 89-6252 (2d Cir.

1989), 496 US. 925 (1990). Pursuant to that authority,

the Election Officer proposed a set of Election Rules to

govern the 1991 election and submitted the Rules to the

district court for approval. The district court modified

the Rules and adopted them as an order of the court,

declaring the Elections Rules to be the “linchpin” to the

enforcement of the consent decree. United States v. IBT,

742 FF. Supp. 94, 97 (S.D.N.Y. 1990), aff'd, 931 F.2d 177 (2d

Cir. 1991); see also Pet. App. A49. The district court held

that the court-adopted Election Rules “shall be

enforceable upon pain of contempt.” United States v. IBT,

742 F. Supp. at 108.

The Election Rules protect the rights of IBT members

to participate In union election campaign activities. Pet.

App. Al104-A105. The Rules specifically state that “[nJo

restrictions shall be placed upon candidates’ or members’

pre-existing rights to solicit support [or] distribute leaf-

lets or literature * * * on employer or Union premises.”

Pet. App. A105.'

2. During the 1991 IBT election campaign, petitioner ~

Yellow Freight Systems, Inc., barred several IBT

‘randidates who were not Yellow Freight employees from

entering its facilities in Chicago Ridge, Illinois, and

Detroit, Michigan, to campaign for union office. Pet.

App. A7. The excluded candidates filed protests with the

' The Election Rules also set out a process for expeditiously

raising and adjudicating election protests. Pet. App. A105-A112.

Uinder that process, protests concerning the election and any al-

leged improper or inequitable treatment of a candidate or his/her

supporters must be filed with the Election Officer, and the Elee-

tion Officer then determines the merits of the protest and the ap-

propriate remedy. Pet. App. A405-A108. Any party adversely af-

fected by a determination may seek a hearing before the Indepen

dent Administrator. If no hearing is requested, the Election Offi-

cer’s determination becomes final and binding. Pet. App. A107-

AlO8. If a hearing is requested, the Independent Administrator

conducts it and thereafter issues a written decision. That decision

may be appealed to the district court. Pet. App. AVOs8-AL09.

Kiection Officer, contending that their exclusion from

the Yellow Freight premises violated the Election

Rules. Pet. App. A7, A88, A85-A92. The Election Officer

investigated the protests and issued an opinion holding

that petitioner cannot bar a candidate from campaigning

on its property unless there is a reasonable alternative

means of face-to-face communication. Pet. App. A63-AG64.

The Eleetion Officer concluded that access to the

Chicago Ridge facility parking lot was necessary to

ensure reasonable access, but that alternative means of

communication were adequate at the Detroit facility.

Pet. App. A59-AG60, A64-AGS. Accordingly, the Election

Officer ordered petitioner to provide access to the

parking lot, or, in the alternative, an open area outside

its terminal building at the Chicago Ridge facility. Pet.

App. A66-A67.

Petitioner appealed the Election Officer’s rulings to

the Independent Administrator, arguing that neither the

lection Officer nor the Independent Administrator had

jurisdiction over it. Pet. App. Ads. The Independent

Administrator rejected the jurisdictional challenge and

affirmed the Election Officer's order. Pet. App. Ad9-A60.

5. Petitioner then appealed the Independent Adminis-

trator’s decision to the district court. The court: re-

jected petitioner's argument that the Election Rules

could not be enforced against a non-party. The court

held that under the All Writs Act, 28 ULS.C. 1651, it had

authority “necessary” in aid of its jurisdiction over the

IBT RICO ease and the ensuing consent decree, and that

it Was necessary to assert such authority where an

employer's actions could subvert the election provision»

that are the “crux” of the decree. Pet. App. Ad0-A42.

Further, the court: noted that non-employee IBT

members have a limited “pre-existing” right of access to

Hon-employer property as guaranteed by the National

D

Labor Relations Act (NLRA), 29 U.S.C. 158(a)(1). Pet.

App. Ad2.

The district court also rejected petitioner’s argument

that the National Labor Relations Board (NLRB) has

exclusive jurisdiction over such disputes. The court

explained that the Supreme Court has recognized that

certain federal labor claims that may be brought as

unfair labor practice actions before the NILRB can also

be asserted directly in federal court. The court held that

this dispute did not fall within the NLRB’s exclusive

jur-isdiction because it was predicated upon the court-

ordered Election Rules. Pet. App. A42-A43.

Finally, the court affirmed the decisions of the

Independent Administrator and Election Officer on the

merits.

4. Petitioner appealed the district court’s ruling to

the United States Court of Appeals for the Second

Cireuit. On Octeber 29, 1991, the court of appeals issued

an opinion and judgment, vacating the judgment of the

district court and remanding the case for further

proceedings. The court rejected petitioner’s jurisdic-

tional arguments, but held that the district court and the

appointed officers did not adequately consider the

alternate means available by which barred IB cam-

paigners might communicate with Yellow Freight em-

ployees. Judge Winter dissented on the ground that the

district court lacked jurisdiction under either the All

Writs Act or the consent decree to adjudicate this

matter.

5. On December 31, 1991, the court of appeals denied

petitioner’s petition for rehearing and suggéstion for

rehearing in bane. Pet. App. A101-A102.

6. in January 1992, the 1991 IBT election was com-

pleted with the Election Officer’s certification of the

election results. Pet. App. A27.

6

7. On February 14, 4992, the court of appeals, sua

spoute, issued an amended opinion.

a. The court of appeals in its amended opinion agreed

that a consent decree does not ordinarily bind a non-

party, but the court noted that there are exceptions to

that general rule. Pet. App. All-A12. The court ex-

plained, however, that in this case there was no need to

resolve the question of whether the Consent Decree

could be applied to Yellow Freight because the All Writs

Act authorized the district court to issue an order

requiring Yellow Freight to permit campaigning on its

property. Pet. “pp. Al2. The court pointed out that-even

petitioner had conceded that “the All Writs Act allows

substantive injunctions against technical non-parties .. .

lin at least some cases] to enforce a decree which

adjudicates public rights.” Pet. App. Al3. The court of

appeals held that the district court’s protection of the

IBT elections was in the public interest and that

mandating limited access to employer premises for

campaigning where there were no other feasible alterna-

tives was properly deemed “necessary and appropriate”

in aid of the district court’s jurisdiction over the under-

lying RICO litigation. Pet. App. Al8-A15.

b. The court further held that the procedures and

review afforded to petitioner were adequate. The court

stated that “[ijt is difficult to imagine additional or

different procedures that would accord Yellow Freight a

significantly enhanced opportunity to present its posi-

tion concerning this controversy.” Pet. App. A15-A17.

lurther, the court held that, as a matter of substantive

law, the provision of access to Yellow Freight’s Chicago

Ridge facility was “agreeable to the usages and _ princi-

ples of law.” Pet. App. A17.

¢. The court rejected the argument that the NLRB

had exclus ve jurisdiction. The court explained that the

NLRB’s exclusive jurisdiction does not necessarily ex-

7

tend to matters where federal laws and policies other

than the NLRA are implicated. The court accordingly

held that this Election Rule dispute could properly be ad-

judicated under the Election Rules dispute mechanism.

Pet. App. A18-A20. The court noted, however, that re-

quiring “strict adherence to the requirements of federal

labor law in the enforcement of the Consent Decree * * *

will preclude * * * iiterference [with national labor pol-

icy].” Pet. App. A20.

d. On the merits, the court held that the district

court, the Independent Administrator, and the Election

Officer had failed to adequately examine the alternative

means of communication available, and remanded the

matter for further consideration. Pet. App. A20-A25. In

a footnote, however, the court observed that between the

time the original opinion was issued on October 29, 1991,

and its amendment on February 14, 1992, this Court had

decided Lechmere, Inc. v. NLRB, 112 S. Ct. 841 (1992),

which significantly affected the law regarding access of

nonemployees to an employer’s property. Pet. App. A26-

A27. The court of appeals stated that, because the case

was now moot “in view of the completion of the 1991

election of IBT officers, we deem it unnecessary to

amend [the discussion of the merits] * * *, but append

this footnote simply to signal the Lechmere development

of the law as of the amendment date of this opinion.” Pet.

App. A27 n.4.

e. Judge Winter again filed the same dissenting

opinion that was filed with the October 29, 1991, opinion.

Pet. App. A27-A35. Judge Winter noted that his dissent

may now appear to be responding to arguments not

raised by his colleagues. Pet. App. A34.

ARGUMENT

1. This case does not present a live case or contro-

versy. The dispute here was whether petitioner violated

s -

—TMhe 1991 Election Rules by barring union members who

were not employed by petitioner from campaigning on its

property. The Election Officer found that petitioner had

violated the Election Rules with respect to its Chicago

Ridge terminal and ordered petitioner to provide access

to the parking lot, or, in the alternative, an open area

outside its terminal building at that facility. Pet. App.

A67. The district court originally affirmed that order,

but the court of appeals vacated the district court’s order

and remanded the case. Pet. App. A26. Vhe district

court did not resolve the questions presented to it on

remand and, since the elections have been held and the

Mlection Rules no longer impose any obligation on

petitioner, there is no need to resolve those issues now.

Petitioner is not under any current obligation that could

be affected by further review of the court of appeals’

decision, and no party is arguing to the contrary. There-

fore, any further proceedings would simply resolve an

abstract question of law that is not embodied in a live

“case or controversy” between the parties. See Preiser

v. Newkirk, 422 U.S. 395, 401 (1975); Local No. 8-6, Oil

Workers Int'l Union v. Missouri, 361 U.S. 363 (1960).

Moreover, the petition does not present a question that

is capable of repetition yet evading review. See Wein-

stein v. Bradford, 423 U.S. 147, 149 (1974). This case

involves the effects of a unique consent decree aimed at

ridding the IBT of the corrupt influence of organized

crime. To accomplish that end, the parties and court

agreed that the 1991 IBT election would be carried out in

accordance with a particular set of procedures designed

to eliminate organized crime influence over that

election—the Election Rules. Now that the 1991 elec-

tion is over, the Election Rules have no further effect. In

short, a dispute involving the interpretation of the 1991

9

lection Rules or petitioner’s obligation not to subvert

those Rules is not “capable of repetition.”

Finally, even if the 1991 election had not been com-

pleted and this dispute were not moot, the court of

appeals did not affirm the district court’s decision, but

instead vacated it and remanded the case so that the

district court could make further factual determinations

concerning petitioner’s obligations to permit non-

employees to campaign on its property. Thus, even if

this case were not moot, it would come before this Court

in an interlocutory posture, in which further factual

findings necessary to frame the ultimate issues on the

merits have not yet been made and in which neither

court below has had the opportunity to address this

Court’s decision in Lechmere, Inc. v. NLRB, 112 S. Ct.

841 (1992). Further review accordingly would not be

war-ranted even if the case were not moot.

2. In any event, the court of appeals was correct in

holding that the district court appropriately invoked its

powers under the All Writs Act against an employer

whose conduct could have subverted the court-ordered

Election Rules and consent decree.* Contrary to peti-

_

* In addition, the court of appeals’ decision concerning whether

an employer may be required to permit non-employees to cam-

paign for union office on its premises is likely to have little future

effect even as precedent. The court itself believed that because

the dispute was moot there was no need to address the effect of

this Court’s Lechmere decision on the merits of petitioner’s claim

that it was not required to permit non-employees to use its

property to campaign for union office. See Pet. App. A26-A27.

The opinion’s discussion of the merits of this case will thus have

little, if any, future precedential force.

% Petitioner contends that the court of appeals erred in holding

that petitioner was bound by a consent decree to which it was not a

party. Pet. 8-15. The court of appeals, however, expressly stated

that it was not deciding whether petitioner could be bound by the

Consent Decree. Pet. App. Al2-A13. Instead, the issue deter-

10

tioner’s sugyestion (Pet. 21-22), the district court did not

employ the Act to enforce a private agreement between

the United States and the IBT. Rather, the district

court invoked the Act to protect the fair and free

elections that were central to achieving the goal of this

RICO action: ridding the union of the influence of

organized crime. Pet. App. A40-A42.

Petitioner complains that the court should not have

adopted “rules for employers in their absence.” Pet. 17.

The district court did not, however, impose any new sub-

stantive obligations on petitioner. The court’s order was

designed simply to ensure that petitioner would not

breach its pre-existing obligations under the NLRA and

thereby subvert the election process. Pet. App. A17, A20,

A42. Thus, in accord with the All Writs Act, the sub-

stantive law applied was plainly “agreeable to the usages

and principles of law.” Pet. App. Al6. Further, petition-

er cannot argue that the enforcement of the All Writs

Act imposed any procedural hardship. As the court of

appeals stated, “[iJt is difficult to imagine additional or

different procedures that would accord Yellow Freight a

significantly enhanced opportunity to present its posi-

tion concerning this controversy.” Pet. App. A1l5-A17.

Petitioner contends that the All Writs Act did not

provide authority for the district court’s original order

in this case because the NLRB has exclusive jurisdic-

tion over this dispute. Pet. 22-29. The NLRB does not,

however, have exclusive jurisdiction over matters per-

taining to or necessary for the enforcement of this RICO

mined by the court of appeals was whether the district court

properly exercised its authority under the All Writs Act. Pet.

App. Al2-A17.

' This Court has recently denied certiorari in a case similarly

challenging the district court’s jurisdiction under the All Writs

Act to enforce the Teamsters consent decree. Star Market Co. v.

United States, No. 91-1674 (June 22, 1992).

1]

consent decree or the court-ordered Election Rules. Pet.

App. A1l8-A20. The principal case relied upon by petition-

ers, San Diego Building Trades Council v. Garmon, 359

U.S. 236 (1959), is not to the contrary. Pet. 23-24. Car--

mon holds that state regulations must ordinarily yield

to the NLRB’s primary jurisdiction over unfair labor

practice disputes. Garmon does not address the enforce-

ment of independent federal rights that flow from the

consent decree or the scope of a district court’s power to

enforce that decree under the All Writs Act.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

WILLIAM KANTER

ROBERT M. LOEB

Attorneys

JULY 1992