Opposition Brief — Scaglione v. Communications Workers of America, Local 1395

FILED

6) SEP 27 186

No. 85-416 / :

CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1985

JOSEPH SCAGLIONE,

Petitioner

V.

COMMUNICATIONS WORKERS OF AMERICA

LOCAL 1395 and AT&T TECHNOLOGIES, INC..,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF OF RESPONDENT

AT&T TECHNOLOGIES, INC.

JOHN H. MASON

Ropes & Gray

225 Franklin Street

Boston, MA 02110

(617) 423-6100

Attorney for Respondent

AT&T Technologies, Inc.

BEST AVAILABLE COPY |

i

QUESTIONS PRESENTED

1. Should Del Costello, decided by this Court in 1983, estab-

lishing a six-month statute of limitations for actions by individuals

against their unions and companies, be applied retroactively to bar

a suit brought in 1977, when the appropriate statute of limitations

was Six years against companies and three years against unions?

2. Should the statute of limitations begin to run when the union

has not informed its member that it has concluded its processing of

the grievance?

3. Does a union owe a fiduciary obligation to its members which

requires it to notify its members in writing that it has concluded the

processing of a grievance, and of a right to bring suit for breach of

the duty of fair representation?

4. Whether the statute of limitations in a suit by an individual

against the union should begin to run where the union is still pursuing

the grievance.

5. When should the statute of limitations begin to run against

a union for breach of the duty of fair representation?

PARTIES

Petitioner and respondents are identified in the petition.

li

TABLE OF CONTENTS

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STATUTES AND RULE INVOLVED .................5.

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REASONS FOR DENYING THE WRIT .................

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TABLE OF AUTHORITIES

CASES

Barina v. Gulf Trading & Transportation Co., 726 F.2d 560 (9th

a | Pe ete ret rid re es Smee

Barnett v. United Air Lines, Inc., 738 F.2d 358 (10th Cir.), cert.

dented, Wb 3. Ge, FON Ce 6 naw on ce ekeccccunnceew

Byrne v. Buffalo Creek Railroad, 765 F.2d 364 (2d Cir. 1985) ..

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

De Arroyo v. Sindicato de Trabajadores Packing, A.F.L.-C.1.0..,

425 F.2d 281 (lst Cir.), cert. denied, 400 U.S. 877 (1970) ..

Del Costello v. International Brotherhood of Teamsters, 462 U.S.

Et: Ge ere ray ee eS: RE TR ee

Edwards v. Sea-Land Service, Inc., 720 F.2d 857 (Sth Cir. 1983)

Edwards v. Teamsters Local No. 36, 719 F.2d 1036 (9th Cir. 1983),

cont. Getied,, TONS. CX. SF ee kn os be ck ena diwnccss.

Landahl v. PPG Industries, 746 F.2d 1312 (7th Cir. 1984) ....

Lincoln v. District 9, International Association of Machinists, 723

Pe Gils Cee Gal, SE sikh ss ted oak eens deycien eee

Local 1397 v. United Steelworkers, 748 F.2d 180 (3rd Cir. 1984)

Murray v. Branch Motor Express Co., 723 F.2d 1146 (4th Cir.

1983), cert. denied, 105 S$. Ct. 292 (1984) ...............

Perez v. Dana Corp., 718 F.2d 581 (3d Cir. 1983) ...........

Pitts v. Frito-Lay, 700 F.2d 330 (6th Cir. 1983) .............

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

curt. doling, Tb DS. Ca mee CR has axdceus vik ten ce

Page

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Smith v. General Motors Corp., 747 F.2d 372 (6th Cir. 1984) (en

ee a ea he wh ha dese 00 Red ae eee

Storck v. Teamsters, 712 F.2d 1194 (7th Cir. 1983) ...........

United Parcel Service, Inc. v. Mitchell, 451 U.S. 56 (1981) ...

Welyczko v. U.S. Air, Inc., 733 F.2d 239 (2d. Cir.}, cert. denied,

OR Er eee re Sree ee

Zemomick v. Consolidated Coal Company, 762 F.2d 381 (4th Cir.

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Federal Rules of Civil Procedure, No. 52(a) ................

ve Lee eT Fi

No. 85-416

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1985

JOSEPH SCAGLIONE,

Petitioner

Vv.

COMMUNICATIONS WORKERS OF AMERICA,

LOCAL 1395 and AT&T TECHNOLOGIES, INC.,

Respondents

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals (Pet., App. A) is not re-

ported. The opinion of the Court of Appeals denying rehearing is

not reported. The Memorandum of Decision of the District Court

granting the motion of respondent AT&T Technologies, Inc. for

summary judgment is not reported. The Memorandum of Decision

of the District Court granting the motion of respondent Local 1395

of the Communications Workers of America for summary judg-

ment (Pet., App. B) is not reported. An earlier opinion of the

Court of Appeals (Pet., App. C) is not reported. An earlier Mem-

orandum of Decision of the District Court (Pet., App. D) is not

reported.

2

JURISDICTION

The Court of Appeals issued its opinion affirming the decision

of the United District Court on April 17, 1985. A timely petition

for re-hearing was denied on June 10, 1985.

This court has jurisdiction pursuant to 28 U.S.C., section 1254(1).

STATUTES AND RULE INVOLVED

This case involves the interpretation and application of 29 U.S.C.,

section 185 and 29 U.S.C., section 160(b). The texts of those

statutes are set forth respectively in Appendices E and F of the

Petition.

Rule 52(a), Fed. R. Civ. P., provides in pertinent part:

‘*Findings of fact shall not be set aside unless clearly erro-

neous, and due regard shall be given to the opportunity of

the trial court to judge of the credibility of the witnesses.”

STATEMENT OF THE CASE

Petitioner, Joseph Scaglione, was discharged from his employ-

ment as a telephone selector with Western Electric Company, now

known as AT&T Technologies, Inc. (the *“‘Company’’) in Octo-

ber, 1975 for continuing unsa‘ actory job application, perfor-

mance, attitude and insubordination, including walking off his

job on the night preceding his discharge. Following his discharge,

petitioner sought to prosecute a grievance with respect to it in

accordance with the procedures set forth in the collective bar-

gaining agreement (the *‘Agreement’’) then in existence between

the Company and the Communications Workers of America (the

*“CWA’’). Under the Agreement, the entity having responsibility

for the initial prosecution of the grievance was Local 1395 of the

CWA (‘‘Local 1395’ or the *‘Union’’), which was the Local hav-

ing responsibility for the Company’s warehouse in Southborough,

Massachusetts, where petitioner was employed.

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Petitioner met with representatives of the Union with respect

to his grievance in December, 1975 and again in January, 1976.

Thereafter, petitioner had no further contact with the Union until

May, 1977 when, in response to an inquiry about the status of his

grievance, petitioner was allegedly told by the person who was

then president of the Union, Francis J. Burns, that he — Burns

— would work on petitioner’s case in “‘seven to ten years.”’

In December, 1977, petitioner commenced this action in the

Superior Court of Massachusetts alleging that the Union and Burns

had improperly failed to prosecute the grievance with respect to

his discharge. In April 1979, petitioner moved to amend his com-

plaint by naming the Company as an additional party defendant

and adding new allegations that his discharge violated the Agree-

ment and that the Company had libeled or slandered petitioner in

connection with his discharge. The Superior Court allowed this

motion to amend on April 9, 1979.

The Company removed the case to the United States District

Court for the District of Massachusetts pursuant to 28 U.S.C.

§ 1446. On June 11, 1979, the Company filed an answer to the

amended complaint in which, among other things, it denied the

substance of petitioner’s allegations, and raised the affirmative

defense that the amended complaint was barred by the applicable

statute of limitations.

From June 1979 through January 1981, petitioner served a

set of document requests on defendants and took two deposi-

tions, each lasting approximately one-half day. Thereafter, on Jan-

uary 16, 1981, the District Court held a pretrial conference at

which petitioner agreed to dismiss his complaint against Burns.

On February 4, 1981, the Company moved for summary judgment

on the grounds that petitioner’s own deposition showed that he

had been properly discharged and that he had alleged no facts

showing that the Union had breached its duty of fair representation

in connection with the discharge. On February 25, 1981, the Union

4

also moved for summary judgment and, in support thereof, filed

an affidavit of Burns.

On August 7, 1981, the District Court granted defendants’ mo-

tions for summary judgment and, in connection therewith, issued

an opinion concluding that petitioner had failed to raise a genuine

issue of material fact with respect to whether the Union had breached

its duty of fair representation in processing his discharge griev-

ance. Pet., App. D. On appeal, the District Court’s judgment was

reversed and remanded in an opinion issued by the Court of Ap-

peals on June 22, 1982. The Court found that petitioner had raised

a genuine issue of material fact with respect to the Union’s pro-

cessing of his grievance. Pet., App. C.

On remand, petitioner unsuccessfully moved to transfer the case

to another judge on the ground that the judge who had previously

granted defendants’ motions for summary judgment was preju-

diced against hirn. Thereafter, on April 29, 1983, the District

Court issued an opinion denying petitioner’s motion to add a claim

for breach of the implied duty of fair dealing.

In August, 1983, the defendants moved for summary judgment

on the grounds that the United States Supreme Court’s decision

in Del Costello v. International Brotherhood of Teamsters, 462

U.S. 151 (1983) established that petitioner’s amended complaint

was barred by the six month statute of limitations set forth in

Section 10(b) of the National Labor Relations Act, 29 U.S.C.

§ 160(b).

After holding a hearing, the District Court on November 15,

1983, denied the Union's motion for summary judgment, but granted

the Company’s motion. In an accompanying opinion, the Court

held that since petitioner’s cause of action against the Company

accrued on or before December 29, 1977, it was barred by the

applicable six month statute of limitations. The Court also held

that petitioner had asserted no facts that would toll the statute and

that his amended complaint against the Company did not relate

—_ |

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back to the date petitioner filed his original complaint against the

Union defendants in December, 1977 (/d.). In the same opinion,

the District Court found that there was a material dispute as to

when petitioner became aware or should have become aware that

Local 1395 would not pursue his grievance.

On October 9, 1984, a trial was commenced, limited to the

threshold issue of when petitioner’s cause of action accrued against

the Union. After hearing testimony and evidence from the peti-

tioner, the District Court on October 10, 1984 ruled that petition-

er’s action had accrued against the Union prior to June, 1977, and

hence was barred by the six month statute of limitations. The

District Court accordingly entered judgment for the defendants.

Pet., App. B. The Court of Appeals affirmed the District Court’s

opinion or Apri! 25, 1985, and denied rehearing on June 10, 1985.

Pet., App. A.

REASONS FOR DENYING THE WRIT

The decision of the Court of Appeals affirming the judgment

of the District Court is consistent with the decisions of this Court

and other courts of appeal. The petition does not present any issue

warranting review by this Court.

1. The first question suggested by the petition — whether this

Court’s holding in Del Costello v. International Brotherhood of

Teamsters should be applied retroactively to so-called hybrid ac-

tions brought under Section 301 of the Labor Management Re-

lations Act, 29 U.S.C. § 185, prior to April, 1981, when the Court

announced its opinion in United Parcel Service, Inc. v. Mitchell,

451 U.S. 56 (1981) — has been answered by the Court in Del

Costello itself and in its companion case, United Steel Workers v.

Flowers. In both Del Costello and in Flowers the Court applied

the six month limitations period to actions which had been brought

in 1978 and in 1979 respectively. 462 U.S. at 155-158. The cir-

cumstances of the Del Costello and Flowers cases are the same

6

in all pertinent respects as the present case, and there is no basis

for reaching a different result here. See also Mitchell, 451 U.S.

at 64 (approving district court’s retroactive application of 90-day

limitation period imposed by New York arbitration statute to suit

under §301 commenced in July, 1978).

Petitioner nevertheless asserts that the factors outlined in Chev-

ron Oil Co. v. Huson, 404 U.S. 97 (1971), compel a holding of

nonretroactivity here. This is not correct. The factors outlined in

Chevron are not satisfied in this case:

(a) Del Costello did not overrule ‘‘clear past precedent’’ in the

First Circuit, as petitioner asserts. Pet. 8. While there was dicta

in De Arroyo v. Sindicato De Trabajadores Packing, AFL-CIO,

425 F.2d 281 (1st Cir.), cert. denied, 400 U.S. 877 (1970), in-

dicating that the state contract limitations period was applicable

to an employee’s suit against his employer for breach of a col-

lective bargaining agreement, the question was not decided in De

Arroyo which held only that the one year Puerto Rico tort statute

of limitations applied to an employee’s § 301 suit against his union.

(b) Nor does a consideration of the purpose and effect of the

rule in question support a finding of nonretroactivity, as petitioner

asserts at pages 9-10 of his petition. In fact, as numerous courts

of appeal have repeatedly recognized, the purposes of the Del

Costello rule were to achieve uniformity of treatment among sim-

ilar cases and promote the finality of grievance-arbitration deci-

sions. These purposes clearly would not be served, but in fact

would be substantially eroded, by a failure io apply Del Costello

retroactively. E.g., Local 1397 v. United Steelworkers, 748 F.2d

180, 184-85 (3rd Cir. 1984) (‘‘the importance of uniformity of

limitations periods’’ in labor law ‘‘was a major consideration in

the Del Costello opinion itself’’ and favors retroactivity); Landahl

v. PPG Industries, 746 F.2d 1312, 1315 (7th Cir. 1984) (“‘giving

retroactive effect to the Del Costello rule would further its pur-

pose’’); Lincoln v. District 9, International Association of Ma-

7

chinists, 723 F.2d 627, 630 (8th Cir. 1983) (‘‘retroactive appli-

cation of Del Costello would further the policy of prompt settlement

of labor disputes’’).

(c) Finally, contrary to petitioner’s assertions (Pet. 10), appli-

cation of the Del Costello rule in this case would not result in any

substantial inequity to petitioner. Petitioner delayed bringing any

action against the Union until December, 1977, which was more

than two years after his discharge. He did not name the Company

as a defendant or otherwise notify it of the lawsuit until April,

1979. The Company promptly asserted in its answer that the claim

against it was barred by the applicable statute of limitations.

Thereafte~, by the time the Court’s decision . Mitchell was an-

nounced in April, 1981 — which petitioner himself concedes clearly

foreshadowed the Del Costello holding — petitioner had engaged

in only limited discovery and had not requested or obtained any

trial of the merits of his claim.

In light of these circumstances, this case is not like those cited

in the petition, where courts of appeal refused to apply Del Cos-

tello retroactively on the grounds that the plaintiff, prior to the

time Del Costello was announced, had ‘‘expended considerable

time and effort in the development of [his] case on the merits.”’

Zemomick v. Consolidation Coal Co., 762 F.2d 381, 387-88 (4th

Cir. 1985). See also Byrne v. Buffalo Creek Co., 765 F.2d 364

(2d Cir. 1985) (refusing to apply Del Costello retroactively where

parties had already invested a ‘‘large amount of time and money”’

in the lawsuit and a full trial on the merits had been held).

Nor is this case like Edwards v. Teamsters Local No. 36, 719

F.2d 1036 (9th Cir. 1983), cert. denied, 104 S. Ct. 1599 (1984),

also cited in the petition, which was subsequently followed in

Barina v. Gulf Trading & Transportation Co., 726 F.2d 560 (9th

Cir. 1984). In Edwards, the Ninth Circuit held, without extended

discussion, that Del Costello should not be retroactively applied

in the case before it because the decision had overruled clear past

8

precedent that had previously existed in the Ninth Circuit. Similar

reasoning cannot be followed in the present case because, as stated

above, there was no clear precedent in the First Circuit as to what

statute of limitations would be applied to an employee’s suit against

his or her employer under Section 301. Pps. 5-6 supra. Accord-

ingly, even assuming it was correctly decided, the decision of the

Ninth Circuit in Edwards does not offer any substantial support

for petitioner’s position in this case.'

For the foregoing reasons, the Court of Appeals was correct in

holding, consistent with the decisions of numerous other courts

of appeal, that the six month limitations period set forth in Section

10(b) of the NLRA is applicable in this action. Welyczko v. U.S.

Air, Inc., 733 F.2d 239 (2d Cir.), cert. denied, 105 S. Ct. 512

(1984); Perez v. Dana Corp., 718 F.2d 581 (3rd Cir. 1983); Mur-

ray v. Branch Motor Express Co., 723 F.2d 1146 (4th Cir. 1983),

cert. denied, 105 S. Ct. 292 (1984); Edwards v. Sea-Land Service,

Inc., 720 F.2d 857 (Sth Cir. 1983); Smith v. General Motors Corp.,

747 F.2d 372 (6th Cir. 1984) (en banc); Storck v. Teamsters, 712

F.2d 1194 (7th Cir. 1983); Lincoln v. District 9, International

Association of Machinists, 723 F.2d 627 (8th Cir. 1983); Barnett

v. United Air Lines, Inc., 738 F.2d 358 (10th Cir.), cert. denied,

105 S. Ct. 594 (1984); Rogers v. Lockheed-Georgia Co., 720 F.2d

1247 (11th Cir. 1983), cert. denied, 105 S. Ct. 292 (1984).

2. Although the petition purports to raise four other questions

in addition to the retroactivity issue, petitioner does not discuss

any of these additional questions or say why certiorari should be

granted with respect to them. In fact, each of the additional ques-

tions have to do with when petitioner’s cause of action originally

accrued, which is a factual guestion governed by the “‘clearly

' Petitioner also cxes the decision of the Sixth Circuit in Pitts v. Frito-Lay,

Inc., 700 F.2d 330 (6th Cir. 1983), but Pitts does not support petitioner’s po-

sition in this case because the Sixth Circuit subsequently held en banc that Del

Costello must be applied retroactively. Smith v. General Motors Corp., 747

F.2d 372 (6th Cir. 1984) (en banc).

9

erroneous’ rule set forth in Rule 52(a), Fed. R. Civ. P. Petitioner

does not appear to suggest that this happened at any time after

December, 1977, when he in fact brought suit against the Union.

Since petitioner did not add the Company as a defendant in the

action until April, 1979 — or more than 15 months after he brought

suit against the Union — the Court of Appeals properly held that

petitioner’s claim against the Company was barred by the six month

statute of limitations.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

JOHN H. MASON

Ropes & Gray

225 Franklin Street

Boston, MA 02110

(617) 423-6100

Dated: September 23, 1985