Opposition Brief — Ehlenfeldt v. C. W. Transport, Inc.

\y) MAY $0 1985

No. 84-1703 ALEXANDER L. STEVAS,

ote

In The

Supreme Court of the United States

October Term, 1984

hy.

Vv

ANTHONY EHLENFELDT,

Petitioner,

v.

C.W. TRANSPORT, INC., LOCAL UNION NO. 710

OF THE INTERNATIONAL BROTHERHOOD OF

TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS OF AMERICA, WILLIAM CLOSE,

THOMAS O’MALLEY, LEROY RANKIN,

AND FRANK WSOL,

Respondents.

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BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

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Dubey W. Pierce

Nasu, Popvin, DETLEFSEN,

TucHscHERER & WEYMOUTH, S.C.

170 Third Street North

P.O. Box 997

Wisconsin Rapids, WI 54494-0997

715/423-8200

Attorneys for Respondents

C.W. Transport, Inc.,

William Close and Thomas O’Malley

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

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TABLE OF CONTENTS

Pages

Statement of the Case 1

Summary of Argument 3

Argument:

I. The Standard Of Intentional Misconduct Is

In Harmony With Decisions Of This Court... 4

II. The Alleged Conflict Between The Circuits

Is One Of Form, Not Substance. 6

III. The Court of Appeals Did Not Err In Ap-

plying The Standard Of Intentional Miscon-

duct To The Facts Of This Case. 9

Conclusion i0

TABLE OF AUTHORITIES

Amalgamated Association of Street, Electric Rail-

way and Motor Coach Employees of America

v. Lockridge, 403 U.S. 274, 29 L.Ed.2d 473, 91

S.Ct. 1909 (1971), reh denied, 404 U.S. 874, 30

L.Ed.2d 120, +2 S.Ct. 24 (1971)

Buchanan v. NLRB, 597 F.2d 388 (4th Cir., 1979) ...... 6

Curtis v. United Transp. Union, 700 F.2d 457 (8th

Cs ccd ebvinie 7

Dutrisac v. Caterpillar Tractor Co., 749 F.2d 1270

I I aceon cumnatrevstacnearsarmanrorin Se

Faust v. IBEW, 572 F.2d 710 (10th Cir., 1978) 0... 8

Ford Motor Company v. Huffman, 345 U.S. 330,

97 L.Ed. 1048, 73 S.Ct. 681 (1953) 4

Griffin v. Intl. Union, United Auto Workers, 469

F.2d 181 (4th Cir., 1972) ........... ad iiscsaianaboake eidiesndbiie 6

Humphrey v. Moore, 375 U.S. 335, 11 L.Ed.2d 370,

84 S.Ct. 363 (1964) 5

il

TABLE OF AUTHORITIES—Continued

Pages

Journeymen Pipe Fitters Local 392 v. NLRB, 712

F.2d 225 (6th Cir., 1983) eet 6

Robesky v. Quantas Empire Airways, 573 F.2d

WE CO CEs Oe eck 8

Tenario v. NLRB, 680 F.2d 598 (9th Cir., 1982) 000. = =—-7

Vaca v. Sipes, 386 U.S. 171, 17 L.Ed.2d 842, 87

Ae. SR CRG D mci ee 3, 5, 6, 8

STATEMENT OF THE CASE

The respondent, C. W. Transport, Inc., wishes to cor-

rect certain inaccuracies and omissions in the petitioner’s

Statement of the Case.

Petitioner, Ehlenfeldt, indicates that in October of

1981 he informed the Company he would retire upon

completion of 20 years employment. According to Eh-

lenfeldt’s deposition, he merely made an off-hand com-

ment to a company management employee that he

“thought’’ he’d make room for a younger employee. The

matter was apparently not pursued any further and the

person to whom the comment was made did not participate

in Ehlenfeldt’s discharge in any way.

Petitioner Ehlenfeldt also states that his union stew-

ard told him after the arbitration hearing that “he thought

Ehlenfeldt did not have enough pension credits to be

eligible for this particular plan.’’ In fact, the union stew-

ard told him, in response to a question from Ehlenfeldt

as to how to get his pension:

“ . .. just go to the hall and check your time, but I

told him I didn’t think he was old enough, but if he

had enough time, he could possibly get it.’’

“Q. You said you didn’t think he was old enough?

A. Yeah.

Q. And by that you meant he didn’t have enough

years or credits to receive his pension?

A. No, I didn’t mean it that way. I meant there’s

a certain age that you can freeze your pension.’’

It is clear the union steward was referring to chron-

ological age, not pension credits as petitioner would have

us believe.

Petitioner states that he grieved his discharge on the

grounds that the delay of freight was excusable because

he had become ill from exhaust fumes entering the cab.

In fact, the written grievance makes no reference to pe-

titioner being ill or that exhaust fumes entered the cab.

The illness issue was not raised until the arbitration hear-

ing and petitioner made no notation of any such defective

or unsafe condition on the dispatch ticket as he is re-

quired to do by company rule, union contract and regula-

tions of the Department of Transportation. There is evi-

dence that the illness issue was thought up after the fact.

Petitioner makes a serious misstatement of fact when

he indicates that the union “advised Ehlenfeldt to exe-

cute a Waiver of Ten Day Notice. ...’’ Neither Ehlen-

feldt nor any other witness ever testified that the union

advised him to execute the waiver. There is no evidence

upon which to base such a statement. The union represen-

tative advised him as to the effect of the waiver. The

chairman of the joint arbitration board advised him of

the effect of the waiver and explained his options. It was

petitioner who insisted that he was prepared and insisted

on proceeding with the hearing.

Finally, petitioner states that the union permitted

the company to introduce evidence at the hearing which

should have been disallowed under the contract. The only

evidence produced by the company at the hearing was

the discharge letter (which is required) and a prior warn-

ing letter dated within the contractual 9 month period

(also required). The petitioner’s complaint arises from

the fact that the discharge letter referred to unspecified

“numerous warning letters’’ some of which may have been

more than 9 months old.

°

SUMMARY OF ARGUMENT

The defendants-respondents, C.W. Transport, Inc.,

William Close and Thomas O’Malley argue:

1. That the standard of intentional misconduct ap-

plied by the Seventh Cireuit Court of Appeals to determine

whether a union has breached its duty of fair representa-

tion is mandated by decisions of this Court. Petitioner

mistakenly construes the terms “arbitrary” and “perfune-

tory’’ as requiring something less than intentional conduct

and therefore concludes that the standard applied by the

Seventh Circuit is in conflict with Vaca v. Sipes, 386 U.S.

171, 17 L.Ed.2d 842, 87 S.Ct. 903 (1967). When Vaca is

considered in light of previous and subsequent cases de-

cided by this Court, the element of intentionality is es-

tablished.

2. The decisions of the various Courts of Appeal

(with the possible exception of the 9th Cireuit) cited by

petitioner are not actually in conflict with the Seventh

Circuit standard. All those Circuits have held that negli-

gent conduct alone is insufficient to breach the duty of

fair representation. Terms and phrases such as “arbi-

trary”, “capricious”, “bad faith”, “perfunecvory”, “without

concern or solicitude” and “cursory” as used in the deci-

sions of this Court and the Courts of Appeals do imply

some form of intentional conduct. Therefore, the con-

flicts, if they are conflicts, are more in the nature of form

and not substance.

3. The petitioner has alleged a bare theory of ma-

licious discrimination by the company and the union. The

courts below found that the record contained no evidence

to support these bare allegations. In his petition for cer-

tiorari, Ehlenfeldt makes the same bare allegation to sup-

port his argument that the courts below erred in applying

the standard to the facts.

4. There is therefore no reason to issue a Writ of

Certiorari to the Seventh Circuit Court of Appeals.

°

ARGUMENT

I.

The Standard Of Intentional Misconduct Is In

Harmony With Decisions Of This Court.

This Court neld that for a union to meet the obliga-

tion imposed by the duty of fair representation it is re-

quired “to make an honest effori *» serve the interests of

all those members, without hostility to any.” Ford Motor

Company v. Huffman, 345 U.S. 330 at 337, 97 L.Ed.1048,

73 S.C. 681 (1953) (Emphasis supplied).

The standard of union conduct was further explained

when this Court refused to sustain, in a 301 suit, a finding

that the union had acted improperly or breached its duty

of fair representation because “there is no substantial

evidence of fraud, deceitful action or dishonest conduct.”

Humphrey v. Moore, 375 U.S. 335 at 348, 11 L.Ed.2d 370,

84 S.Ct. 363 (1964).

In this context, this Court decided Vaca v. Sipes, 386

U.S. 171, 17 L.Ed.2d 842, 87 S.Ct. 903 (1967) where it was

held:

“A breach of the statutory duty of fair representation

occurs only when a union’s conduct toward a member

of the collective bargaining unit is arbitrary, discrim-

inatory, or in bad faith.” Jd. at 190.

Some courts and commentators believe that the “arbi-

trary” standard announced in Vaca requires something

less than intentional conduct, that some form of negligent

conduct will suffice.

This Court decided that issue in Amalgamated Asso-

citation of Street, Electric Ratlway and Motor Coach Em-

ployees of America v. Lockridge, 403 U.S. 274, 29 L.Ed.2d

473, 91 S.Ct. 1909 (1971), reh denied, 404 U.S. 874, 30 L.Ed.

2d 120, 92 S.Ct. 24 (1971), when it held that in order to

establish a breach of the duty of fair representation a

plaintiff must prove arbitrary or bad faith conduct on

the part of the union (the Vaca standard) and that “There

must be ‘substantial evidence of fraud, deceitful action or

dishonest conduct!’” Jd. at 299 (the Humphrey standard).

The Court further indicated that the doctrine of fair rep-

resentation was originally developed and applied by the

courts “and carries with it the need to adduce substantial

evidence of discrimination that is intentional, severe, and

unrelated to legitimate union objectives. ...” Jd. at 301.

(Emphasis supplied)

We believe that the standard of intentional miscon-

duct adopted by the Seventh Circuit Court of Appeals is,

contrary to petitioner’s claim, in harmony with the de-

cisions of this Court.

IT.

The Alleged Conflict Between The Circuits Is

One Of Form, Not Substance.

Petitioner cites Griffin v. Intl. Union, United Auto

Workers, 469 F.2d 181 (4th Cir., 1972) as showing that

the Fourth Cireuit has rejected a standard of intentional

conduct. That case merely applied the Vaca standard of

arbitrary or bad faith conduct. The facts of the case

clearly showed that there was substantial evidence of bad

faith because union officers, who were close friends of the

Operations Manager who had been assaulted by the griev-

ant, conspired to have the grievant’s case against the

Operations Manager dropped. References to “arbritary”

conduct were unnecessary and dicta. The 4th Cireuit has

specifically rejected a negligence standard in assessing

whether a union las breached its duty of fair representa-

tion. In Buchanan v. N.L.R.B., 597 F.2d 388 (4th Cir.,

1979) the court held that failure to process a meritorious

grievance or negligence does not, per se, constitute arbi-

trary conduct.

Likewise, with the Sixth Cireuit. The case cited by

petitioner merely standards for the proposition that arbi-

trary or perfunctory conduct does not necessarily involve

bad faith or fraud. It does not say that negligent or un-

intentional conduct can form the basis for finding a breach

of the duty of fair representation. In fact, such conduct

has been specifically declared to be insufficient to estab-

lish a breach of the duty. Journeymen Pipe Fitters Local

392 v. NLRB, 712 F.2d 225 (6th Cir., 1983). In this case

7

it was held the union did not breach its duty because there

was no evidence presented to suggest that the union agent

acted with hostility or with a discriminatory motive toward

the member. This would imply the application of a stand-

ard of intentional misconduct.

The idea of mere negligent unintentional conduct being

sufficient to breach the duty of fair representation was

also ruled out by the Eighth Circuit in Curtis v. United

Transportation Union, 700 F.2d 457 (8th Cir., 1983) when

it held that mere negligence, poor judgment or ineptitude

are insufficient to establish a breach of the duty. The

proposition for which petitioner cites the case can be read

to require intentional conduct. Terms such as “perfunc-

tory”, “without concen or solicitude” or “cursory” all can

imply intentional conduct.

The Ninth Cireuit case of Dutrisac v. Caterpillar

Tractor Co., 749 F.2d 1270 (9th Cir., 1983) holds that when

the challenged conduct of the union is an erroneous de-

cision regarding the merits of a grievance, or an inter-

pretation of the contract, or the prosecution of the griev-

ance at the arbitration hearing, then it is negligence which

does not constitute a breach of the duty of fair representa-

tion. However, the court did hold that in cases where a

union negligently fails to perform a ministerial act and

where the individual interest is strong and the failure

results in completely extinguishing the individual’s right

to preserve his claim, then such conduct may form the

basis for imposing liability on the union for breach of its

duty. It should be noted that the 9th Cireuit previously

held that conduct which shows egregious disregard for

the rights of union members could violate the duty of fair

representation [See Tenario v. NLRB, 680 F.2d 598 (9th

Pursuant to fule 28.1, C. W. Transport,

Inc. is a Delaware corporation and is

a whollv owned subsidiary of Gerber

Products Corporation, a ifichigan

corporation. No publicly held company

owns ten percent or more of the stock

of Gerber Products Corporation.

8

Cir., 1982)] and that negligence by itself could not breach

the duty [Robesky v. Quantas Empire Airways, 573 F.2d

1082 (9th Cir., 1978)]. The concurring opinion in Dutrisac

criticizes the majority opinion as signifying that ordinary

negligence may constitute a breach of the union’s duty of

fair representation in spite of the explicit disclaimer to

the contrary in Rebesky. The law in the 9th Cireuit does

not seem to be settled.

Neither does Faust v. IBEW, 572 F.2d 710 (10th

Cir., 1978) support the petitioner’s contention of disagree-

ment between the Circuits. There the question before the

Court of Appeals was whether the trial court correctly

instructed the jury as to the proper standards to apply.

The court approved the trial court’s submission of the

Vaca standard and its definition of the terms “arbitrary”,

“capricious” and “bad faith”, all of which, we believe,

are just other ways of saying intentional misconduct. The

evidence regarding the conduct found violative of the

union’s duty consisted mainly of the union’s intentional

insistence that the grievant personally submit the claim

to them in spite of the short time available, the passing

of correspondence between union officers in different

states when time was short and the unexplained failure

of the union to file the grievance, which it had, on time.

This all implies conscious intentional conduct on the part

of the union from which the jury covld infer arbitrary,

capricious and bad faith conduct.

The cases cited by the petitioner can stand for the

proposition that some intentional conduct is required in

order to find a beach of the union’s duty of fair repre-

sentation. Terms such as “arbitrary’’, “capricious’’ and

“bad faith” have such connotations. The 9th Circuit is

the only one which has indicated that negligence, in cer-

tain limited cases, may be enough to breach the duty, and

this case clearly is not one of those limited cases involving

the failure to perform a ministerial act. This holding was

criticized by the Dissent as being contrary to previously

announced and unreversed holdings of the Court. We

believe the differences in the Circuits are more of form

than substance.

ITI.

The Court Of Appeals Did Not Err In Applying

The Standard Of Intentional Misconduct To The

Facts Of This Case.

The facts assumed by the District Court and quoted

by petitioner is the very best case petitioner can establish.

At the outset, it should be noted that the District Court

did not say that petitioner had established the assumed

facts, but had “arguably established” them. Petitioner

claims that these facts “‘when viewed in light of respond-

ent’s motive to deprive Ehlenfeldt of his substantial pen-

sion benefits. .. .” created an issue of fact. The problem

with that statement is that petitioner never adduced any

evidence to support his bare theory of the respondents’

motive. This alleged motive exists only in the mind of

the petitioner and has absolutely no basis in fact. The

courts below, after reviewing t!e transcripts, came to

the same conclusion. The District Court observed:

‘‘This is not just a weak case. Under the facts

brought to the Court’s attention for this motion, it

is an impossible case because there is no evidence

from which intentional misconduct on the part of the

union can be inferred.’’ App. 16, Petition for Writ

of Certiorari (Emphasis supplied).

10

The Court of Appeals also observed:

‘‘Thus, while he offers a bare theory of malicious

discrimination against him, there is not a shred of

evidence to support it.’’ App. 5, Petition for Writ of

Certiorari. (Emphasis supplied.)

On the evidence adduced in this case the lower courts

had no option but to find as they did.

ny

Vv

CONCLUSION

For the reasons stated above the Petition for Writ

of Certiorari should not be granted.

Respectfully submitted,

Dup.tey W. Pierce

Nasu, Popvin, DETLEFSEN,

Tucuscuerer & Weymouts, S.C.

170 Third Street North

P.O. Box 997

Wisconsin Rapids, WI 54494-0997

Dated at Wisconsin Rapids, Wisconsin

this 28th day of May, 1985.

Attorneys for Respondents

C. W. Transport, Inc.,

William Close and

Thomas O’Malley