Opposition Brief — John Morrell & Co. v. Local Union 304A of the United Food & Commercial Workers

. Supreme Govt, Ug.

A EILE pb

ae MAR 25 987

No. 86-1226 JOSEPH F. SPANIOL, JR,

Cc

IN THE

Syprenve Curt of the United States

OCTOBER TERM, 1986

JOHN MORRELL & Co.,

Petitioner,

¥,

LOocAL 304A, UNITED FooD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, AFL-CIO, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

GEORGE MURPHY

RICHARD ROESEL

1775 K Street, N.W.

Washington, D.C. 20006

ROBERT S. BATES, JR.

201 North Wells, Suite 1900

Chicago, Illinois 60606

DAVID SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

WILSON - Epzs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

@ BE 00

TABLE OF CONTENTS

COUNTERSTATEMENT OF THE CASE ...................

DFE Ey tte cecrcemntesentecmpptinnncnsmnanciinnameutimavinin nbsenisiess

I. Because The Parties Have Not Agreed To Ar-

bitrate The Employer’s’ Breach-of-Contract

Claim, This Case Does Not Pose The Question

That Divided The Court in Buffalo Forge........

II. Petitioner Has Not, In Any Event, Offered Any

Justification For Reopening The Question Set-

eg et ena Tny Lenn a OED

oe che es cic 4g et EONS EAE ALOE SIE NEN Cr Be APSE

13

ii

TABLE OF AUTHORITIES

CASES: Page

Atkinson v. Sinclair Refining Company, 370 U.S.

238 (1962) ... csutieansiiuiiiies eeipeeentemsniic eid ietibeghie 9

Boys Markets v. Clerks Union, 398 U.S. 235

CHT) onan nn eva sci cee cecinnseceiesc emeneenantans acon 6-7, 9, 10

Buffalo Forge Co. v. Steelworkers, 428 U.S. 397

CTOFB) canna nie passim

Complete Auto Transit v. Reis, 451 U. S. 401

(|) a nenne mann ere rts See Ra SS 10

Jacksonville Bulk Terminals v. Longshoremen, 457

U.S. FOR C16BB) ices eeeet 5, 6, 9, 10

Nat’l Wrecking Co. v. Kumerow, 606 F. Supp. 374

(N.D.IR. 1006) ..... eee 12

Transcaribbean Motors Transport, Inc. v. Union

de Tronquistas, 553 F. Supp. 362 (D.P.R. 1982) .. 12

Tudor Fashions Ltd. v. Romney, 634 F. Supp.

ww GDA. 1... 12

STATUTES:

Norris-LaGuardia Act, § 4, 29 U.S.C. § 104 -........... passim

MISCELLANEOUS:

BNA, Basic Patterns in Union Contracts (8th ed.

ROB) ccnscrcicincncsncccnecnendeieneneeaeine 11

BNA, Basie Patterns in Union Contracts (11th ed.

See. Siew csanstriicensntiastiiaiiadiada maintained oe 11

Comment, Labor Law—Buffalo Forge Co. v. United

Steelworkers: The End of the Erosion of the

Norris-LaGuardia Act, 55 No. Car. L. Rev. 1247

CYGFT) anon nccncsancnscnseeencics alee is 3

Comment, Boys Markets Injunctions Against Em-

ployers: Lever Bros., Inc. v. Chemical Workers,

Local 217, 91 Harv. L. Rev. 715 (1978) _.......... 7

Freed, Injunctions Against Sympathy Strikes:

In Defense of Buffalo Forge, 54 N.Y.U.L. Rev.

280 (1079) q...-<cscccciage ee eos

Note, 88 Harv. L. Rev. 463 (1974) ........................

Note, Sympathy Strikes and Federal Court In-

junctions, 27 Louisiana L. Rev. 926 (1977) ........ 7

4-1

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 86-1226

JOHN MORRELL & Co.,

Petitioner,

V.

LOcAL 304A, UNITED FooD AND COMMERCIAL WORKERS

INTERNATIONAL UNION, AFL-CIO, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

The opinions below, basis for invoking this Court’s

jurisdiction, and statutory provisions involved are cor-

rectly set forth in the Petition for Certiorari at pp. 1-2,

and we therefore do not reprint those materials here.

COUNTERSTATEMENT OF THE CASE

Petitioner’s statement of the case presents a funda-

mentally misleading impression of the relevant facts.

Accordingly, we begin by setting the record straight.

2

Respondents United Food and Commercial Workers

International Union and its Local 304A (collectively re-

ferred to herein as “the Union”) are the exclusive repre-

sentative of the production and maintenance employees at

the Sioux Falls, South Dakota meat packing plant of

petitioner John Morrell & Co. (“Morrell” or “the Em-

ployer”). The Union and Morrell are parties to a col-

lective bargaining agreement covering the Sioux Falls

plant.

Two aspects of that agreement are of relevance here:

First, the agreement contains a no-strike clause which,

after noting that the parties have agreed to procedures

“for the peaceful settlement of any disputes which may

arise between the Company and the Union,” prohibits

strikes “on account of such disputes until an earnest

effort has been made to settle all such matters in the

manner provided in the . . . agreement[].” See Pet. at

3-4,

Second, the agreement establishes a four-step proce-

dure for adjusting grievances arising under the contract

and provides that “[i]f the grievance is not resolved in

th{e fourth] step, the Local Union may submit it to

arbitration.” The agreement goes on to specify the pro-

cedure by which the Local Union may do so:

A grievance shall be submitted to arbitration by

written notice to the [Morrell] Director of Industrial

Relations for the Company. Such notice shall be sent

not later than six months after the Local Union has

received the written answer of the Company... .’

1 The provisions of the collective bargaining agreement establish-

ing the grievance-arbitration machinery are reprinted in an ap-

pendix to this Brief. Those provisions are in two parts: first,

provisions that apply only to the Sioux Falls and that are contained

in a “local agreement,” see App. la-2a, and second, provisions that

apply both to Sioux Falls and one other Morrell plant and that are

contained in a “master agreement,” see App. 2a-6a.

3

The agreement contains no procedure by which the Em-

ployer may file grievances or appeal grievances to arbi-

tration, and Morell has never attempted to do so during

the parties’ long-standing bargaining relationship.”

On August 4, 1985, Local 340 of the United Food and

Commercial Workers—the Local that represents the em-

ployees at Morrell’s Arkansas City plant—placed a law-

ful picket line in front of Morrell’s Sioux Falls plant in

furtherance of that Local’s lawful economic strike against

Morrell. With a few exceptions, the Sioux Falls hourly

employees declined to cross the picket line at their plant.

Believing that the refusal of its Sioux Falls employees

to cross the picket line constituted a violation of the no-

strike clause in the Sioux Falls collective bargaining

agreement, Morrell, as was its right, immediately filed a

breach of contract action in South Dakota state court

seeking legal and equitable relief. That suit was removed

to federal court on the day it was filed. The following

day, the Arkansas City local withdrew its picket line

and the Sioux Falls employees returned to work. —

To penalize the employees who had failed to report to

work on August 4th, Morrell noted or threatened to note

each employee’s absence as “unexcused” in the employ-

ee’s files. On August 8, 1985, the Union filed a class

grievance with Morrell alleging that any such discipli-

narly action would be improper under the collective bar-

gaining agreement. The Union’s grievance thus put in

issue the question whether the employees’ actions had vio-

lated the no-strike provision of the agreement. To this day,

more than seven months after the grievance was filed,

Morrell has failed to respond to the grievance and thus

the grievance remains stymied in the initial step of the

grievance procedure.

? Affidavit of James Lyons, December 1, 1986, { 5.

4

On August 15, 1985, the Arkansas City Local resumed

picketing the Sioux Falls plant and once again the Sioux

Falls employees declined to repovt to work. Morrell im-

mediately filed the instant case in federal court which,

like the earlier suit, alleged a breach of contract by the

Union, its officers and “John Doe and Other Persons

Unknown.” Morrell again sought legal and equitable

relief.

On the same day that this action was filed, the district

court granted a temporary restraining order against the

defendants. On August 29, 1985, the district court issued

a preliminary injunction which prohibited the defendants

from “calling, instigating, directing, encouraging, caus-

ing, assisting or participating in a strike, work stoppage

. . . or interruption with the operation of plaintiff’s

Sioux Falls plant .. .” Pet. App. A-21. The district

court based the injunction on a finding that the second

work stoppage was a “dispute over an arbitrable issue,

i.e., the right under the collective bargaining agreement

to discipline these workers.” Id. A-16.

Defendants appealed the preliminary injunction to the

United States Court of Appeals for the Eighth Circuit.

On October 30, 1986, that court reversed the injunction.

The court of appeals could “find no support in the rec-

ord” for the district court’s finding that the August 15th

work stoppage was over the discipline imposed by Mor-

rell; indeed, that court found that the Union “has sought,

not avoided, arbitration of the grievance,” Jd. A-7. That

being so, the court of appeals concluded that the injunc-

tion was contrary to § 4 of the Norris-LaGuardia Act,

29 U.S.C. § 104, as that Act has been interpreted by this

Court in Buffalo Forge Co. v. Steelworkers, 428 U.S. 397

(1976) .*

3 Three weeks after the Eighth Circuit issued its decision Morrell

—for the first time in this case—filed a motion to compel arbitration

over the question of whether the work stoppages that occurred on

August 4th and 15th were in breach of contract. The Union resisted

5

ARGUMENT

In its petition, Morrell states that the Company “does

not seek review of the Eighth Circuit’s interim ruling

that the strikes at issue were sympathy strikes,” and

were not strikes over an arbitrable dispute. Pet. at 5

n.2. Rather, Morrell urges this Court to grant certiorari

for the sole purpose of reconsidering a question that this

Court resolved, after plenary consideration, in Buffalo

Forge, a resolution which was reaffirmed less than five

years ago in Jacksonville Bulk Terminals v. Longshore-

men, 457 U.S. 702 (1982). For two independent reasons,

we submit, the petition should be denied.

First, this case does not squarely raise the question

petitioner attempts to tender to this Court. This is not a

case in which an employer is required, or even permitted,

to invoke arbitration to determine whether a work stop-

page is in breach of contract, and thus this is not a case

in which an injunction is sought pending arbitration.

Rather, this case falls into the category of cases as to

which all Members of the Court in Buffalo Forge agreed

that an injunction is barred by the Norris-LaGuardia

Act: viz., a case in which the parties have not agreed to

submit the employer’s contract claims to arbitration.

See Part I, infra.

that motion on the ground that Morrell had no right, under the

contract, to appeal any grievance to arbitration, and that Morrell

had blocked the Union from arbitrating its grievance over the

discipline by Morrell’s failure to answer that grievance. By order

dated December 22, 1986, the district court denied Morrell’s peti-

tion to compel arbitration. Morrell’s damage action is thus pending

before the district court at the present time; the Union has answered

and denied that the no-strike provision in the collective bargaining

agreement extends to sympathy strikes.

To date, and notwithstanding the position the Union took in

response to Morrell’s motion to compel arbitration, Morrell still

has not responded to the Union’s grievance. Accordingly, that griev-

ance remains pending in the initial step of the grievance procedure.

6

Second, even if the question that divided the Court in

Buffalo Forge were presented here, petitioner has not

shown any reason for reconsidering the holding of that

case. Petitioner has not shown that Buffalo Forge has

posed practical problems for labor-management relations,

nor has petitioner pointed to any intervening decisions or

events that call into question the Court’s analysis in

Buffalo Forge. Rather, petitioner merely rehearses the

very arguments that were made to this Court in Buffalo

Forge and again in Jacksonville Terminals, and that the

Court properly found unpersuasive. See Part II, infra.

I. Because The Parties Have Not Agreed To Arbitrate

The Employer’s Breach-of-Contract Claim, This Case

Does Not Pose The Question That Divided The Court

in Buffalo Forge.

A. Section 4 of the Norris-LaGuardia Act forbids fed-

eral courts from issuing injunctions “in any case involv-

ing or growing out of any labor dispute to prohibit any

person... from... [cJeasing or refusing to perform

any work...” In Boys Markets v. Clerks Union, 398

U.S. 235 (1970), this Court carved out an exception to

Norris-LaGuardia’s general anti-injunction rule in order

“to accommodate and harmonize” that Act with “the con-

gressional policy to promote the peaceful settlement of

labor disputes through arbitration.” Id. at 241. Reason-

ing that “the very purpose of arbitration procedures is

to provide a mechanism for the expeditious settlement

of industrial disputes without resort to strikes” and that

this “basic purpose is obviously largely undercut if there

is no immediate, effective remedy for those very tactics

that arbitration is designed to obviate,” id. at 249, the

Court held that, notwithstanding Norris-LaGuardia, a

strike “‘over a grievance which both parties are con-

tractually bound to arbitrate’” may be enjoined, id. at

254.

In Buffalo Forge, this Court faced the question of

whether the “ ‘narrow’ ” Boys Market exception, 428 US.

7

at 406, quoting Boys Market, 398 U.S. at 253, should be

extended to a case in which “[t]he employer . . . was

entitled to invoke the arbitral process to determine the

legality of [a] sympathy strike,” but the “strike was

not over any dispute between the Union and the employer

that was even remotely subject to the arbitration provi-

sions of the contract,” Buffalo Forge, 428 U.S. at 405,

407 (emphasis in original). The Court held that Boys

Market was inapplicable to such a case and that Norris-

LaGuardia foreclosed injunctive relief.

In reaching this conclusion, the Buffalo Forge Court

reasoned that because the sympathy strike “had neither

the purpose nor the effect of denying or evading an ob-

ligation to arbitrate,” there was no need “to accommodate

§ 4 of the Norris-LaGuardia Act” in order “to implement

the strong congressional preference for the private dis-

pute settlement mechanisms agreed upon by the parties.”

Id. at 407-08. The Court concluded that absent such a

need, the “allegation of the complaint that the union was

breaching its obligation not to strike did not in itself

warrant an injunction.” Jd. at 409.4

The dissenting Justices disagreed with the majority’s

first premise, arguing as follows:

A sympathy strike in violation of a no-strike clause

does not directly frustrate the arbitration process,

but if the clause is not enforceable against such a

* Contrary to petitioner’s suggestion, see Pet. at 7 n.4, a number

of scholars have agreed with the Court’s reasoning in Buffalo Forge

and with the result the Court reached. See, e.g., Freed, Injunctions

Against Sympathy Strikes: In Defense of Buffalo Forge, 54

N.Y.U.L. Rev. 289 (1979) ; Note, Sympathy Strikes and Federal

Court Injunctions, 37 Louisiana L.Rev. 926 (1977) ; Comment, Boys

Markets Injunctions Against Employers: Lever Bros., Inc. v. Chemi-

cal Workers, Local 217, 91 Harv. L. Rev. 715 (1978) ; Comment,

Labor Law—Buffalo Forge Co. v. United Steelworkers: The End

of the Erosion of the Norris-LaGuardia Act, 55 No. Car. L. Rev.

1247 (1977) ; see also, Note, 88 Harv. L. Rev. 468 (1974).

8

strike, it does frustrate the more basic policy of

motivating employers to agree to binding arbitration

by giving them an effective “assurance of uninter-

rupted operation during the term of the agreement.”

(Id. at 423-24 (Stevens, J., dissenting) .]

Significantly, however, the dissenters did not disagree

with the majority’s second premise, viz., that a strike

cannot be enjoined merely because the strike is in breach

of contract. The dissenters thus stated an important

‘limitation on the extent to which they believed Norris-

LaGuardia allows injunctions of sympathy strikes which

are in breach of contract:

It is not necessary to hold that an injunction may

issue if the scope of the no-strike clause is not a

clearly arbitrable issue. If the agreement contains

no arbitration clause whatsoever, enforcement of the

no-strike clause would not promote arbitration by

encouraging employers to agree to an arbitration

clause in exchange for a no-strike clause. Further-

more, even if the agreement contains an arbitration

clause, but the clause does not clearly extend to the

question whether a strike violates the agreement,

then the parties’ commitment to enforcement of the

no-strike clause through enforcement of the arbitra-

tor’s final decision also remains unclear. [Id. at

426-27 n.20 (emphasis added) (Stevens, J., dissent-

ing) .]

Thus, although the Buffalo Forge Court was divided

over the propriety of an injunction where “[t]he em-

ployer . . . was entitled to invoke the arbitral process to

determine the legality of the sympathy strike,” 428 U.S.

at 405 (majority opinion), the Court was unanimous in

holding that Norris-LaGuardia precludes an injunction

where the employer’s right to invoke arbitration is not

established.

B. The instant case falls sauarely into the latter cate-

gory, and thus does not raise the question that divided

the Court in Buffalo Forge and which petitioner seeks to

9

tender to the Court here. As we have seen, the collective

bargaining agreement between Morrell and the Union

contains no provision which authorizes the Employer to

file grievances, let alone to appeal a grievance to arbitra-

tion. To the contrary, the agreement provides only that

“the Local Union may submit [a grievance] to arbitra-

tion.” P. 2, supra. Thus, what the Court found to be

true in Atkinson v. Sinclair Refining Company, 370 U.S.

238, 243 (1962), is equally true here: there is “not a

word in the grievance and arbitration article providing

for the submission of grievances by the company” and

“no place in the contract does the union agree to arbi-

trate at the behest of the company.” Rather, the agree-

ment “expressly provides that arbitration may be invoked

only at the option of the union.” Jd.

Accordingly, the Employer’s remedy here, as in Atkin-

son, is “to take its claims elsewhere,” namely to state or

federal court. Jd. And nothing in the federal policy

favoring “the peaceful settlement of labor disputes

through arbitration,” Boys Market, 398 U.S. at 241, jus-

tifies interpreting Norris-LaGuardia to permit injunc-

tions prior to a judicial adjudication of the lawfulness of

a strike. Thus, on any reading of Buffalo Forge, this

case simply does not raise any issue warranting this

Court’s attention.

II. Petitioner Has Not, In Any Event, Offered Any Justifi-

cation For Reopening The Question That Was Settled

In Buffalo Forge.

Buffalo Forge was decided by this Court roughly a

decade ago following plenary consideration, and with the

benefit of briefing not only by the parties to the case but

also by four amici curiae (including the Chamber of

Commerce and the National Association of Manufactur-

ers). The ruling in Buffalo Forge was reaffirmed less

than five years ago, in Jacksonville Terminals, in which

this Court, again following plenary consideration, ex-

pressly “decline[d an] invitation” to “reconsider our de-

10

cision in Buffalo Forge.” 457 U.S. at 723 n.23. See also

Complete Auto Transit Co. v. Reis, 451 U.S. 401, 416-17

n.18 (1981).

Even if arguendo, this case raised the issue decided

in Buffalo Forge and reaffirmed in Jacksonville Terminal,

petitioner offers no justification for reopening that which

this Court has so recently settled. In the main, petitioner

simply rehearses the arguments that were made by the

employer and its supporting amici curiae in Buffalo

Forge and that failed to carry the day. See Pet. 10-23.

-The opinion in that case speaks for itself, and rather

than using our own words to respond to petitioner’s at-

tack, we rest on Justice White’s opinion for the Court in

Buffalo Forge.®

The only new argument petitioner advances is the

claim that, in practice, Buffalo Forge has “complicate[d]

the courts’ role and discourage[d] employers from agree-

5 It is noteworthy that the bulk of petitioner’s attacks on Buffalo

Forge are based on arguments for permitting injunctions whenever

a strike is claimed to be in breach of contract, regardless of whether

the contract claim is arbitrable. After all, the denial of injunctive

relief “allow[s] unions to avoid express no-strike pledges,” Pet. at

12, whether or not the pledge is subject to arbitration; the denial

of injunctive relief will have an equal impact on employers’ willing-

ness to “agree[] to arbitration,” id. at 18, regardless of whether

a grievance over breach of the no-strike clause is itself arbitrable;

and the denial of injunctive relief “effectively disposesse[s] state

courts of their right to enforce collective bargaining agreements

by enjoining illegal sympathy strikes,” id. at 22, again without

regard to whether enforcement is through arbitration.

Thus, in the main, petitioner is seeking a vast expansion of the

Boys Market exception to Norris-LaGuardia—an expansion which

would loose that exception from its original rationale.

Petitioner advances only one point that is in any way tied to the

concerns underlying Boys Market: viz., that Buffalo Forge “marks

an extreme departure from this Court’s policy favoring arbitration

of labor disputes over industrial warfare.” Pet. at 16. That is

precisely the point that was the principal subject of discussion in

the opinions in Buffalo Forge and that the majority, for reasons

stated at length in its opinion, found unpersuasive.

11

ing to arbitration.” Pet. at 18. According to petitioner,

cases subsequent to Buffalo Forge reveal that “[d]ecid-

ing whether a strike is a sympathy strike, as opposed to

a strike over an arbitrable issue, embroils trial courts

and courts of appeals in complicated and intricate hear-

ings concerning the nature of industrial disputes and a

union’s motives in striking.” Jd. And petitioner further

claims that the ultimate result of Buffalo Forge is to

“discourage employers from agreeing to binding arbitra-

tion.” Jd. at 20. Petitioner is in all respects mistaken.

To begin with, petitioner’s professed fear that Buffalo

Forge has “discourage[d] employers from agreeing to

binding arbitration,” Pet. at 20, is wholly lacking in any

empirical support. The Bureau of National Affairs most

recent survey of major collective bargaining agreements

finds that 99% now contain arbitration clauses, an in-

crease of 3% from the figure a decade ago, when Buffalo

Forge was decided. We know of no statistical—or even

anecdotal—evidence to suggest that Buffalo Forge has

led employers to seek to eliminate arbitration procedures

from labor contracts or to oppose the inclusion of such

procedures.

Nor is there any merit to petitioner’s suggestion that

identifying a “sympathy strike” is a “complicated and

intricate task.” As the record in this case illustrates,

there are certain easily-ascertained hallmarks of almost

every sympathy strike: a group of employees (other

than the employees whose conduct is at issue) are en-

gaged in a labor dispute with their employer; in further-

ance of that dispute, those employees place pickets in

front of some workplace; and another group of employ-

ees, who are not directly invelved in the labor dispute,

elect to honor the picket line and decline to report to

® Compare BNA, Basic Patterns in Union Contracts (11th ed.

1986) p. 37 with BNA, Basic Patterns in Union Contracts (8th

ed. 1978), p. 37.

12

work. Given these telltale signs, most sympathy strikes

are easy to detect.

To be sure, in this area, as in any other area of the

law, there will be, at the margins an occasional case in

which it will not be clear whether the strike is over an

arbitrable issue. The rarity of such cases is illustrated by

the fact that of the over one hundred and seventy lower-

court cases which have relied on Buffalo Forge over the

past decade, petitioner is able to cite only three cases,

see Pet. at 19 n.7, in which courts allegedly have had

difficulty in determining whether a strike was a sympathy

strike, and even those cases do not support petitioner’s

claim.” Moreover any rule establishing the conditions that

must be satisfied for injunctive relief—including the rule

petitioner champions under which injunctions would be

available whenever a court determines that a no-strike

provision covers sympathy strikes—will generate some

“complicated and intricate” cases. Indeed in each of the

three cases petitioner cites to illustrate the alleged diffi-

culties in applying Buffalo Forge, the courts would have

faced precisely the same “difficulty” under petitioner’s

proposed rule, as in each case the determinative issue was

not whether the strike was over an arbitrable dispute

but whether the no-strike clause applied to the work stop-

page at hand. See n.7 supra.

7™In Tudor Fashions, Ltd. v. Romney, 634 F.Supp. 297 (S.D.N.Y.

1986), the employer who attempted to invoke the no-strike clause,

although arguably an alter ego of the signatory employer, was not

a party to the collective bargaining agreement; the question for

decision was whether the no-strike clause ran in that employer’s

favor. In Nat’l Wrecking Co. v. Keumerow! 606 F. Supp. 374 (N.D.

Ill. 1985), the court did not reach the arbitrability issue, having

determined that the strike was over an issue about which the

employees had a right to strike under the no-strike clause. And in

Transcaribbean Motors .Transport, Inc. v. Union de Tronquistas,

553 F. Supp. 362 (D.P.R. 1982), which was an action for damages

based on alleged provision breach of a no-strike clause, the scope

of the arbitration—which applied only to specific enumerated cases

—was readily ascertainable, but was of importance only in inter-

preting the scope of the narrow no-strike clause.

13

In sum, petitioner has failed to offer any basis to war-

rant reopening the issue settled in Buffalo Forge.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

GEORGE MURPHY

RICHARD ROESEL

1775 K Street, N.W.

Washington, D.C. 20006

ROBERT S. BATES, JR.

201 North Wells, Suite 1900

Chicago, Illinois 60606

DAVID SILBERMAN

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 687-5390

APPENDIX

la

APPENDIX

Grievance Procedure

46. All grievances handled through the Union,

whether individual or group, shall be presented in writ-

ing and handled in the following manner:

First Step: Between the aggrieved Employee or group

of Employees either with or without a Union representa-

tive and the supervisor of the department, who may elect

to call in his divisional superintendent. The supervisor

shall answer in writing not later than the following

work day. If no satisfactory adjustment is arrived at,

then:

Second Step: Between the representatives designated

by the Union and the aggrieved Employee or group of

Employees and the Manager of Hourly Employees or

other representative designated by the Company. The

Company representative shall answer in writing the sec-

ond work day following unless unusual circumstances

should warrant additional time to answer. If no satis-

factory adjustment is arrived at, then:

Third Step: Between the representatives designated

by the Union and the Manager of Personnel—Labor Re-

lations, or other representative designated by the Com-

pany. The Company representatives hearing the griev-

ance shall give a written answer by the third work day

following unless unusual circumstances should warrant

additional time to answer.

47. Fourth Step: Failure to resolve a grievance after

concluding the first three (3) steps of grievance proce-

dure, as contained in local agreement, grievances may

be appealed in accordance with the provisions of Sections

84, 85 and 86 of the Master Agreement.

48. Priority Grievances: Discharge Grievances. The

Union may request an immediate meeting and such re-

2a

quest will be granted as soon as the designated Union

representatives can be replaced by a qualified Employee.

49. No grievance, with the exception of those pertain-

ing to job rates, will be processed unless filed within 30

working days of the circumstance that provoked the

grievance.

50. When it becomes necessary to schedule meetings

it shall be done by appointment. However, matters per-

taining to discharges which cannot reasonably be de-

layed, may be presented at any time.

51. The Business Agent of the Union shall be allowed

access to the plant at any time to conduct Union busi-

ness.

52. Officers of the Union and elected stewards will be

given time to handle union matters as necessary with

permission from the supervisor just as soon as a replace-

ment can be put in their places and such a request will

not be unreasonably delayed.

XXI

GRIEVANCE PROCEDURE

83. (a) The grievance procedure now in effect at each

plant with respect to all steps involving representatives

of the Company shall remain in effect except as changed

by local agreement.

(b) Warnings, disciplinary actions or other such in-

formation concerning an Employee’s individual work

record which are more than two (2) years old shall not

be considered in disciplinary actions.

(ec) The Company shall not discharge any Employee

for receiving garnishments from up to 5 creditors in any

12 month period.

Ave bomeamptdiind

A a Ee I a EE co mre eNOS se? RL AA Nitin

3a

(d) The Company shall not hold any conference or in-

terview with an Employee who is the subject of any in-

vestigation or who is being interviewed in connection

with the imposition of discipline or the issuance of a

warning which is to be entered in the Employee’s record

(provided such interview or conference goes beyond the

announcement of the disciplinary action or the delivery

of the warning), unless the Company shall have advised

the Employee of his right to be represented at such oc-

casion by a Union representative of his choice and shall

afford the Employee, if he or the Union representative

so request, the opportunity to consult privately with such

representative before the commencement of the meeting.

(e) No letters or notations of warning or of discipli-

nary action shall be entered in any Employee’s personnel

record unless the Company first advises the Employee of

its intent to enter such writings in his record and affords

him an opportunity to read such material. Upon reason-

able notice, an Employee shall be afforded an opportu-

nity to read and obtain copies of any materia! in the

Employee’s personnel record or file concerning verbal or

written warnings or disciplinary action affecting such

Employee or any other material in the Employee’s per-

sonnel file relevant to a pending grievance which is

brought on behalf of such Employee.

(f) No Employee will be required to submit to an ex-

amination by lie detector machine (polygraph), stress

test evaluator or other similar device.

84. (a) When the steps in the local grievance proce-

dure as specified in Section 83 above have been com-

pleted, grievances other than those described in the next

sentence may be appealed to a step called the “National

Step”. Grievances involving discharge or other discipline,

seniority (except for questions relating to or growing

out of inter-plant transfer), and job loads may be sub-

mitted by a local union directly to arbitration if not re-

4a

solved at the highest step of the local grievance proce-

dure, provided that the International Union and the

Company Corporate Labor Relations Department may

participate in any such arbitration.

(b) When a grievance involving a matter referred to

in subparagraph (a) above has been submitted to arbi-

tration by a Local Union, the Company Director of In-

dustrial Relations or the Director of the Packinghouse

Division of the International Union may request a pre-

arbitration meeting to discuss the case. Such meeting

shall be requested only if the case is unusual or complex

and if they agree that such a meeting may help to expe-

dite the arbitration hearing by clarification of the is-

sues. Such meeting shall not delay or interfere with the

selection of the arbitrator and scheduling of the hearing.

85. In the National Step, the Director of Industrial

Relations for the Company, or his representative, and the

Director of the Packinghouse Division of the Interna-

tional Union, or his representative, shall meet, together

with such representatives of the Local Union or of the

local plant management as either shali deem necessary.

If the grievance is not resolved in this step, the Local

Union may submit it to arbitration. Until August 31,

1985, such meeting shall be held in a city designated by

the International Union, which shall be not more than

100 miles from the plant city unless the Company agrees

to a meeting in a more distant city.

86. (a) A grievance shall be submitted to arbitration

by written notice to the Director of Industrial Relations

for the Company. Such notice shall be sent no later than

6 months after the Local Union has received the written

answer of the Company in the National Step (in the case

of grievances other than those involving discharge or

other discipline) or no later than 6 months after the

Local Union has received the written answer of the Com-

pany in the highest step of the grievance procedure in

5a

effeet locally (in the case of grievances involving dis-

charge or other discipline). A grievance which has not

been submitted within the 6 month time limit shall be

null and void and not subject to further appeal or arbi-

tration.

(b) Grievances which are submitted to arbitration

shall be presented to an arbitrator whose decision shall

be final and binding on all parties involved. In making

such decision, the arbitrator shall be bound and governed

by the provisions of this Agreement and of the applica-

ble local agreement or agreements at the plant in which

the grievance arose, and shall be restricted to the appli-

cation of said agreements to the facts relevant to the

grievance. Where more than one grievance from any one

pliant has been submitted to arbitration and notices of

such submissions have been given within 30 days of each

other, either party, in the interest of economy, shall have

the right to have the grievances presented to the same

arbitrator at the same sitting, provided that after a total

of 50 cases have been arbitrated under this Section 86(b)

in such multi-grievance proceedings, either party, on

written notice to the other, may reopen the question as

to whether this provision with respect to such proceeding

shall be retained in the Agreement. The expense of the

arbitration shall be shared jointly by the parties.

(ec) The parties shall establish a panel of 3 arbitra-

tors for disputes processed pursuant to this Section 86.

Unless the parties designate the panel arbitrator by mu-

tual agreement, selection of the arbitrator from the panel

shall be made in rotation, provided that if the arbitra-

tor selected for any dispute is not available to hear or

decide the dispute promptly and within the time limita-

tions herein set forth, the next panel arbitrator in line

shall be designated for such dispute.

(d) In the arbitration of any grievance, briefs shall

not be submitted to the arbitrator unless either party

|

6a

requests otherwise at the arbitration hearing, in which

case briefs of both parties shall be delivered to the arbi-

trator by depositing in the mail no later than 7 days

after the close of the hearing (or if either party has or-

dered a transcript, then no later than 21 days after the

close of the hearing) and there shall be no extension of

time for filing briefs. Unless the parties agree to extend

the time, the arbitrator shall render his decision within

14 days after the close of the hearing or the receipt of

briefs, if applicable, in a case involving discharge or

other discipline and within 30 days after the close of the

hearing or the receipt of briefs, if applicable, in all other

cases, provided that failure of the arbitrator to render a

decision within the time herein prescribed shall not in-

validate his decision.

* * * *