Reply Brief — Save Mart of Modesto, Inc. v. United Food & Commercial Workers Union

In The

Supreme Court of the United States

October Term, 1984

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SAVE MART OF MODESTO, INC.,

Petitioner,

v.

UNITED FOOD AND COMMERCIAL WORKERS

UNION, LOCAL 126,

Respondent.

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PETITIONER'S REPLY MEMORANDUM

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McLavcHuiw anp Irvin

Patrick W. Jorpan

Henry F. Teireian

Counsel of Record

100 Pine Street, Suite 770

San Francisco, CA 94111

Telephone: (415) 433-6330

Counsel for Petitioner

Save Mart of Modesto, Inc.

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

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TABLE OF CONTENTS

Page

I. The Status Of The Arbitration Proceeding Is

Irrelevant. 1

II. The Union’s Assertion Of Mootness Is Disin-

genuous And The Legal Question Is Subject To

Repetitive Litigation. 2

III. The Proceedings Before The National Labor Re-

lations Board Are Irrelevant. 4

IV. Conclusion 8

TABLE OF AUTHORITIES

CAsEs:

Abood v. Detroit Board of Education, 431 USS.

209 (1977) 3

American Bell, Inc. v. Telephone Workers, 736

F.2d 879, 116 LRRM 2673 (1984) 1

Carey v. Westinghouse Electric Corp., 375 US.

261 (1964) a

Courier-Citizen Co. v. Electrotypers Local 11, 702

F.2d 273 (1st Cir. 1983) 4

Dubo Manufacturing Corp., 142 NLRB 431 (1963) . 5,6

Edna Pagel, Inc. v- Teamsters Local 595, 667 F.2d

1275 (9th Cir. 198?) ..... 4

George Day Construction Co. v. Carpenters Local

354, 722 F.2d 1471 (9th Cir. 1984) a 2

Haig Berberian, Inc. v. Cannery Warehousemen,

535 F.2d 496 (9th Cir. 1976) 1, 3,7

Hospital & Institutional Workers Union Local 250

v. Marshall Hale Memorial Hospital, 647 F.2d

38 (9th Cir. 1981) 6,7

Howard Johnson Co. v. Detroit Local Joint Execu-

tive Board, 417 U.S. 249 (1974) 7

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TABLE OF AUTHORITIES—Continued.

Page

Jones v. Snead, 431 F.2d 1115 (8th Cir. 1970) 0.8

Local 3-193 v. Ketchikan Pulp Co., 611 F.2d 1295

(9th Cir. 1980) 7

Paramount Transportation System v. Teamster

Local 150, 436 F.2d 1064 (9th Cir. 1971) 4

South Prairie Construction Co. v. Local No. 267,

Int'l. Union of Operating Engineers, 425 US.

800 (1976) 6, 7

Southern Pacific Terminal Co. v. Interstate Com-

merce Commission, 219 U.S. 498 (1911) 3

United Food & Commercial Workers Union v. Al-

pha Beta, 736 F.2d 1371 (9th Cir. 1984) 6, 7

Weinstein v. Bradford, 423 U.S. 147 (1975) 3

In opposition to the Petition for Writ of Certiorari,

Respondent United Food and Commercial Workers Union,

Local 126, AFL-CIO (hereinafter “Local 126” or

‘‘Union”) has filed a Memorandum suggesting that the

case is moot, there is no potential conflict with the Na-

tional Labor Relations Act, the arbitrator was not em-

powered to determine a representational issue, and ac-

cordingly, certiorari should not be granted. For the rea-

sons set forth below, these suggestions are incorrect and

should be rejected.

-

The Status Of The Arbitration Proceeding

Is Irrelevant.

The issue presented to this Court is whether the Dis-

trict Court had jurisdiction under Section 301 to issue

an order compelling aribtration and not whether the deci-

sion rendered by the arbitrator is valid. The arbitration

award is of no value if arbitration was improperly or-

dered in the first instance. Ha’g Berberian, Inc. v. Can-

nery Warehousemen, 535 F.2d 496 n. 1 (9th Cir. 1976).

As held by the Sixth Circuit in American Bell, Inc. v. Tele-

phone Workers, 736 F.2d 879, 116 LRRM 2673 (1984):

‘‘The Union argues that the issue in this appeal is

moot because (1) the arbitrator has already held

hearings on the disputed question of ABI’s obligation

under the collective bargaining agreement, and (2)

ABI is admittedly bound by the bargaining agree-

ment, whatever this court may decide, with respect

to several thousand former Bell employees trans-

ferred to ABI in January of this year. We agree

with ABI that the issue in this appeal is not moot.

ABI has presented this court with the question wheth-

er it is bound by the bargaining agreement on the

1

basis of Bell’s transfer of assets, and whether it must

therefore arbitrate disputes about its employment

practices. This question is antecedent to any issue

that the arbitrator may decide, and in fact will deter-

mine whether the arbitrator has jurisdiction. The

status of the arbitration proceedings is therefore ir-

revelant.” (Emphasis added.) 116 LRRM at 2676-2677.

The Union’s argument that this issue may now be

litigated in a related proceeding to confirm the arbitration

award! is simply incorrect. Having previously challenged

arbitrability, Save Mart may have no standing to raise

the objection in a subsequent proceeding. George Day

Construction Co. v. Carpenters Local 354, 722 F.2d 1471

(9th Cir. 1984). The law of the case has been estab-

lished.”

IT.

The Union’s Assertion Of Mootness Is Dis-

ingenuous And The Legal Question Is Subject To

Repetitive Litigation.

The Union fails to inform the Court that presently

pending between the parties are at least five other griev-

ances involving additional stores and raising the identical

issue presented by this Petition. The “dispute” is not

over merely because this particular arbitration proceeding

1 On January 15, 1985, the Union filed with the United

States District Court for the Northern District of Califor-

nia a petition to confirm the arbitration award rendered.

The case has been assigned case no. C-85-0443 MHP.

2 Nor do we understand the Union’s contention to be an

offer to waive any objection it may have to such a de-

fense under George Day Construction Co. v. Carpenters

Local 354, supra.

3

has been completed. See Abood v. Detroit Board of Edu-

cation, 431 U.S. 209 (1977).

Moreover, Save Mart sought a stay of the Order

Compelling Arbitration from both the District Court and

the Court of Appeals. Both courts denied that request

presumably because by bringing “the therapy of arbitra-

tion ... to bear in a complicated and troubled area” the

entire dispute might have been resolved. Carey v. Wes-

tinghouse Electric Corp., 375 U.S. 261 (1964). Indeed,

the Union’s prior suggestion of mootness to the Ninth

Cireuit Court of Appeals was rejected.

Arbitration, by its very nature, is an expeditious

process which will always terminate before judicial pro-

ceedings can be completed. If issues about the underly-

ing validity of the process cannot be raised merely be-

cause the arbitration proceeding itself has been com-

pleted, those issues will evade effective judicial review.

It is well-established that an action is not moot if it is

“capable of repetition, yet evading review.” Southern

Pacific Terminal Co. v. Interstate Commerce Commission,

219 U.S. 498, 515 (1911); see also Weinstein v. Bradford,

423 U.S. 147, 149 (1975).

The courts have long recognized that the inability to

undo past acts does not moot a controversy where the

past acts have present or future consequences that can be

reached by a judgment. See Jones v. Snead, 431 F.2d 1115

(8th Cir. 1970). A decision by this Court holding that

Section 301 does not grant jurisdiction over representa-

tion issues would effectively nullify any arbitration award

issued in this case, thus making this a live controversy

subject to this Court’s review. Haig Berberian, Inc. v.

Cannery Warehousemen, supra,-at n. 1.

4

ITI.

The Proceedings Before The National Labor

Relations Board Are Irrelevant.

This Petition raises the important question of wheth-

er a court may permit an arbitrator to make bargaining

unit and representation determinations which a court it-

seif may not make. Local 126 seeks to ignore this issue

and instead focuses on whether or not the National Labor

Relations Board (NLRB) has made a final determination

which, in turn, precludes the possibility of conflicting deci-

sions. Despite Local 126’s protestations to the contrary,

many of the issues underlying this case are not now, and

have never been before the NRLB. To the extent there

has been some overlap, the NLRB has not issued a final

determination.

In its Counterstatement of the Case, Local 126 re-

peatedly asserts that the NLRB has taken various actions.

Passim. Local 126 failed to differentiate between deci-

sions of the NLRB and decisions of the NLRB’s General

Counsel. While the former are binding law entitled to

collateral estoppel or res judicata effect, the latter have

no value whatsoever. Cowrier-Citizen Co. v. Electrotyp-

ers Local 11, 702 F.2d 273, n. 6 (1st Cir. 1983); Edna

Pagel, Inc. v. Teamsters Local 595, 667 F.2d 1275 (9th

Cir. 1982); and Paramount Transportation System v.

Teamster Local 150, 436 F.2d 1064 (9th Cir. 1971).

As stated by Local 126, the unfair labor practice

charge filed by Save Mart was dismissed by the General

Counsel. Accordingly, that dismissal is of no moment.

Additionally, the unfair labor practice charge filed by

Local 126 alleging only that Petitioner improperly failed

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to transfer employees to the newly opened Hanford store

has been deferred to the pending arbitration proceedings.

This preliminary deferral decision was made pursuant

to the NLRB’s longstanding policy, as set forth in Dubo

Manufacturing Corp., 142 NLRB 431 (1963), of deferring

to court-ordered arbitration. The “RM” representation

petition filed by Save Mart to allow its employees an op-

portunity to exercise their Section 7 rights was dismissed

solely because Local 126 did not at that time claim to

represent the employees in the Hanford store. Finally,

the “UC” petition, which would have allowed the Board

an opportunity to determine the bargaining unit and rep-

resentation issues, was dismissed, without prejudice, as

being premature. Thus, the NLRB has not made a deter-

mination upon the question of the appropriate bargain-

ing unit or the representation rights of Local 126.

As can be seen from the Union’s Counterstatement of

the Case and the discussion above, the NLRB’s Regional

Office relied upon the District Court’s order to arbitrate,

pursuant to the Board’s Dubo Manufacturing Corp. doe-

trine, in issuing its deferral letter. Therefore, the NLRB

3 Local 126’s claim that it filed an unfair labor practice

charge asserting that the employers failed to apply the

Agreement at the Hanford store is a misstatement of

the facts. (Memorandum, p. 6.) Local 126’s allegations

were as follows: ‘Within the last six months preceding

the filing of this charge, the above-named employer has

unilaterally repudiated past practice and the terms of the

collective bargaining agreement by refusing to transfer

employees to the newly opened Hanford store. In addi-

tion, the employer has discriminated against employees on

account of their Union activities and/or membership.”

(Basis of the charge as filed by Local 126 in NLRB Case

No. 32-CA-5774, dated August.8, 1983.)

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has not focused upon the bargaining unit or representation

issues raised by the instant Petition. Neither has the

NLRB had an opportunity to determine that a Regional

Office perfunctory deferral decision, issued pursuant to

Dubo Manufacturing Corp., supra, is consistent with this

Court’s determination in South Prairie Construction Co.

v. Local No. 267, Int’l. Union of Operating Engineers, 425

U.S. 800 (1976) (per curiam), that the protections em-

bodied in Section 157 of the Labor-Management Relations

Act would be maintained by deferring bargaining unit and

representation issues to private arbitration.

Of equal significance is that but for the District

Court’s order of arbitration, the NLRB would have exer-

cised its primary jurisdiction to determine the represen-

tation issues involved herein. There can be no serious

dispute that the unit clarification (“UC”) petition would

have been processed and the bargaining unit issue re-

solved had not the District Court issued the order to ar-

bitrate. Finally, absent such an order to arbitrate, the

Board would have had an opportunity to determine wheth-

er or not Local 126 had sustained its burden of affirma-

tively demonstrating that it represented a majority of

those employees. For these reasons and each of then,

Local 126’s suggestion that the NLRB has affirmatively

deferred its representational jurisdiction to private ar-

bitration should be rejected.

In a related yet equally unavailing argument, Local

126 seeks to distinguish this case on the ground that there

exists no inconsistent board determination, relying upon

United Food & Commercial Workers Union v. Alpha Beta,

736 F.2d 1371 (9th Cir. 1984); Hospital & Institutional

Workers Union Local 250 v. Marshall Hale Memorial Hos-

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pital, 647 F. 2d 38 (9th Cir. 1981); and Haig Berberian,

Inc. v. Cannery Warehousemen, supra. Local 126’s reliance

upon Alpha Beta and Marshall Hale is misplaced for the

simple reason that neither of those cases raise representa-

tion issues. Haig Berberian is of no value for the reason

that it was decided prior to South Prairie and the Ninth

Cireuit’s later decision in Local 3-193 v. Ketchikan Pulp

Co., 611 F.2d 1295 (9th Cir. 1980).

Finally, Locai 126 seems to suggest that while it would

be inappropriate for a court to determine an issue which

may ultimately resolve the representation rights of cer-

tain employees, it is appropriate for a court, acting under

Section 301 jurisdiction, to direct that an arbitrator do the

same thing. Recognizing that such a contention is incon-

sistent with this Court’s decision in Howard Johnson Co.

v. Detroit Local Joint Executive Board, 417 U.S. 249

(1974), Local 126 asserts that absent a ‘‘contrary Board

determination” the order to arbitrate was proper. Local

126 does not rely upon any representation case authority

for such a proposition, and none currently exists. Indeed,

counsel for Local 126 concedes that if the District Court

had determined the representation issue, the Union would

not have opposed this Petition. Yet nowhere in its Mem-

orandum does Local 126 explain why an arbitrator should

possess the derivative power under Section 301 to resolve

a dispute beyond the subject matter jurisdiction of a court.

Moreover, Local 126 does not dispute that there is an inter-

Cireuit dispute upon the extent to which federal jurisdic-

tion exists under Section 301 over representation ques-

tions within the purview of the NLRB. Only this Court

ean provide the solution to the problem raised by the in-

stant Petition, and a resolution of the divergent views ex-

pressed by the various Courts of Appeal.

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CONCLUSION

For the aforesaid reasons, it is respectfully submitted

that the present controversy is not moot, and that the

Petition for Writ of Certiorari should be granted to re-

view the important federal questions raised by the Ninth

Cireuit Court of Appeals’ Decision.

DATED: February 20, 1985.

Respectfully submitted,

McLaveoxsie anv Invi

Pataicxk W. Jonpan

Henry F. Tevrein

(Counsel of Record)

100 Pine Street, Suite 770

San Francisco, CA 94111

(415) 433-6330