Opposition Brief — Smegal v. Gateway Foods of Minneapolis, Inc.

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SUPToIMe UOUTL, U.o.

ririus 2

OCT 16 1987

JOSEPH F. SPANIOL, JR.

No. 87-444 CLERK

Iu the

Supreme Court of the United States

October Term, 1987

RICHARD L. SMEGAL, MARVIN A. ROGERS, and

RODNEY W. BOMSTAD, on behalf of themselves and

all others similarly situated,

. Petitioners,

GATEWAY FOODS OF MINNEAPOLIS, INC.,

and OVER-THE-ROAD, CITY TRANSFER,

COLD STORAGE, GROCERY & MARKET DRIVERS,

HELPERS & INSIDE EMPLOYEES UNION,

LOCAL NO. 544, affiliated with the

international Brotherhood of Teamsters,

Chauffeurs, Warehousemen & Helpers of America,

NATIONAL SUPER MARKETS, INC..

Respondents.

On Petition for Writ of Certiorari to the United State

Court of Appeals for the Eighth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

Martin J. Costello

PETERSON, BELL, CONVERSE

& JENSEN

2100 American National Bank Building

101 East Fifth Street

Saint Paul, Minnesota 55101

(612) 224-4703

Counsel for Respondent Over-the-

Road, City Transfer, Cold Storage,

Grocery & Market Drivers, Helpers

& Inside Employees Union,

October, 1987 Local N. 544

1987 — Bachman Printing, 835 Second Avenue So.. Mpb.. MN 55402 — (612) 339-9518

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TABLE OF CONTENTS

Page

TA ee PRE es eos hed ei semen wesc aes il

SE Aa Ge RE nc is ke vcc cnc cwssvans 2

REASONS FOR DENYING THE WRIT............. 3

I. The decision below does not raise the

Question Presented in the Petition ............... 3

I]. The decision below involved a

determination of successorship in a specific

factual situation involving a breach of fair

representation claim and therefore does not

provide an appropriate context in which to

decide the Question Presented .... 62... .sccceees 6

CR EY 666565 ek 0h tO A MSA doe RAE A Rae EN 7

TABLE OF AUTHORITIES

Cases

Fail River Dyeing & Finishing Corp. v.

wae, See US. W , 107 S.Ct.

SES

Howard Johnson Co. v. Detroit Local Joint

Executive Board, Hotel & Restaurant

Employees and Bartenders International

EE rr

John Wiley & Sons, Inc. v. Livingston, 376 U.S.

EE re ee ee ee

Jorgensen v. Modern Woodmen of America, 761

eT PE Tee eee

Rogers v. Lodge, 458 U.S. 613 (1982) ............

Service, Hospital, Nursing Home and Public

Employees’ Union Local 47 v. Cleveland

Tower Hotel, Inc., 606 F.2d 684

ES SEE SST OCCT TEE

Smegal v. Gateway Foods of Minneapolis, 763

RG)

United States v. Johnston, 268 U.S. 220

SS ee

Statutes and Rules

I dG cae cc ese s sss entess

Page

pte 3

No. 87-444

In the

Supreme Court of the Huited States

October Term, 1987

RICHARD L. SMEGAL, MARVIN A. ROGERS, and

RODNEY W. BOMSTAD, on behalf of themselves and

all others similarly situated,

Petitioners,

GATEWAY FOODS OF MINNEAPOLIS, INC.,

and OVER-THE-ROAD, CITY TRANSFER,

COLD STORAGE, GROCERY & MARKET DRIVERS,

HELPERS & INSIDE EMPLOYEES UNION,

LOCAL NO. 544, affiliated with the

International Brotherhood of Teamsters,

Chauffeurs, Warehousemen & Helpers of America,

NATIONAL SUPER MARKETS, INC.,

Respondents.

On Petition for Writ of Certiorari to the United State

Court of Appeals for the Eighth Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Respondent Over-the-Road, City Transfer, Cold Storage.

Grocery & Market Drivers, Helpers & Inside Employees

Union, Local No. 544, respectfully requests that this Court

deny the Petition for Wnt of Certiorari seeking review of the

Eighth Circuit’s opinion in this case. That opinion is reported at

819 F.2d 191 (8th Cir. 1987).

STATEMENT OF THE CASE

This Respondent substantially agrees with Petitioners’ State-

ment of the Case (Pet. 3-8) except for the inaccurate summary

of the Eighth Circuit’s decision that Petitioners ask this Court

to review. The majonty panel opinion did not, as petitioners

state (Pet. 8), “concludfe] that ‘substantial continuity requires

that predecessor’s employees constitute a majority of the succes-

sor’s workforce.’*” The majority simply affirmed the district

court’s conclusion that Gateway was not a successor employer,

based on the majonity’s concurrence in the district court’s evalua-

tion of appropriate and adequate factors, other than the conti-

nuity of the work force. These factors, the court held, “demon-

strated that there is no substantial continuity between the Gate-

way and National operations.” (Pet. A-7)

Moreover, Petitioners contend in their Statement of the Case

(Pet. 8) that the concurnng opinion, in finding that there was

no Union breach of its duty of fair representation, “inexplicably”

ignored an earlier decision in the same matter, Smegal v. Gate-

way Foods of Minneapolis, Inc., 763 F.2d 354 (8th Cir. 1985)

(“Smegal I”), where the Eighth Circuit remanded to the district

court for a determination on the successorship issue. This is an

inaccurate characterization of the concurring opinion. The

Smegal I court in remanding, merely said that “it cannot be

said as a matter of law” that Gateway was not a successor

employer at the summary judgment stage of the proceedings.

Id. at 360. On remand the successorship issue was fully consi-

dered on the merits pursuant to stipulated facts, bnefs and oral

argument.

Finally, Petitioners’ statement that the Union “did nothing”

about Petitioners’ grievance after it was rejected by Gateway

(Pet. 6), must be corrected. The Union duly considered the

merits of the grievants’ successorship claim and decided that it

should not be further pursued to arbitration.

REASONS WHY THE PETITION SHOULD BE DENIED

1. The decision below does not raise the Question

Presented in the Petition.

The sole Question Presented in the Petition (p. i) is whether

it is proper in a § 301 successorship case to apply “a fixed rule

that there can be no successorship unless the predecessor’s

employees constitute a majority of the successor’s work force.”

But the Eighth Circuit did not decide that question in this

proceeding. The court did not rule that work force continuity

turned on whether a majority of the successor’s employees were

those of the predecessor. Instead, the court did not adopt any

rule on how to determine work force continuity, holding that

the specific facts of this case compelled it to sustain the trial

court’s correct analysis and application of other appropriate

successorship factors.

In its opinion (Pet. A-1 to A-9), the majority of the Eighth

Circuit panel correctly noted that the basic consideration in

determining successorship status is whether there is “substantial

continuity between the new operation and the old, particularly

with regard to the employees.” (Pet. A-5) See John Wiley &

Sons, Inc., v. Livingston, 376 U.S. 543, 551 (1964). Whether

there is “substantial continuity” of business operations between

enterprises depends upon a number of factors, including:

. whether the business of both employers is essentially

the same; whether the employees of the new company are

doing the same jobs in the same working conditions under

the same supervisors; and whether the new entity has the

same production process, produces the same products, and

basically has the same body of customers.

Fall River Dyeing & Finishing Corp. v. N.L.R.B, 482 U.S.

, 107 S.Ct. 2225, 2236 (1987). Another important factor in

determining successorship is “whether there exists substantial

continuity of identity in the work force across the change in

ownership.” Service, Hospital, Nursing Home and Public

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Employees’ Union Local 47 vy. Cleveland Tower Hotel, Inc.,

606 F.2d 684, 687 (6th Cir. 1979). The successorship inquiry is,

in all cases, “primarily factual in nature and is based on the

totality of the circumstances in a given situation.” Fall River,

supra, 107 S.Ct. at 2236.

The continuity of the work force question, only one of many

successorship considerations, depends upon the definition of

“majority” employed by the decision maker. In its decision, the

Eighth Circuit simply discussed the present status of “majority”

determination law. The Eighth Circuit did not, however, adopt

a specific formulation for determining work force continuity

when it affirmed the district court’s conclusion that Gateway is

not a successor to National.

The court states that it previously has “not ruled directly on

which test is to be used when a § 301 charge is involved” (Pet.

A-6); and does not decide that question in this case either. The

court merely points out that there is no Eighth Circuit preced-

ent supporting the definition of “majonty of employees” pro-

posed by the Petitioners, id, and then makes it clear that

regardless of how the district court analyzed the continuity of

the work force factor, its opinion must be affirmed: “Even if the

appellants’ definition of the majority test were accepted by the

panel, the remaining factors used to evaluate substantial conti-

nuity support the district court’s decision.” (Pet. A-7) The court

then reviews these other facters in light of the evidence and

finds that “{o]n the whole, the weight of these factors suggests

that Gateway is not a successor employer.” /d. The court’s

analysis and conclusion were proper in all respects.

Whether an employer is a “successor” depends upon the legal

and factual contexts in which the issue arises. “There is, and

can be, no single definition of ‘successor’ which is applicable in

every legal context. A new employer, in other words may be a

successor for some purposes and not for others.” Howard

Johnson Co. v. Detroit Local Executive Board, Hotel & Res-

taurant Employees and Bartenders International Union, supra,

417 U.S. 249, 262, n. 9 (1974). Therefore, “in light of the diffi-

culty of the successorship question, the myriad factual circum-

stances and legal context in which it can arise and the absence

of congressional guidance as to its resolution, emphasis on the

facts of each case as it arises is especially appropriate.” /d. at

256.

The circuit court examined the district court’s findings of fact

under the appropriate “clearly erroneous” standard of review.

Jorgensen v. Modern Woodmen of America, 761 F.2d 502 (8th

Cir. 1985); Fed. R. Civ. P. 52(a). It noted that the matter must

be considered, as the trial court did, in light of national labor

policy and the nights and interests of the parties, as well as the

facts. The court explicitly, and implicitly through approval of

the district court’s decision, performed the required analysis

suggested by Howard Johnson, supra, 417 U.S. at 262, n. 9.

Because the decision of the Eighth Circuit turns solely upon

its consideration of the particular and unique facts involved in

this dispute rather than upon the Question Presented by the

Petitioners, certiorari should not be granted. This Court does

not grant certioran to review evidence and discuss specific facts,

e.g., United States v. Johnston, 268 U.S. 220, 227 (1925),

especially where, as here, the court of appeals has affirmed the

factual findings of the district court. See Rogers v. Lodge, 458

U.S. 613, 623 (1982).

The Eighth Circuit’s decision simply does not provide an

appropnate vehicle for deciding the Question Presented by Peti-

tioners. Moreover, Petitioners acknowledge this in the footnote

to their overly narrow and incorrectly stated Question Presented

(Pet. i, bottom of page). Petitioners state, “If the instant petition

is granted, petitioners intend to raise an additional question:

Must the parties’ stipulation of facts on the other factors cus-

tomarily involved in successorship determinations be given

effect?” That statement betrays Petitioners’ own recognition that

the Eighth Circuit’s decision was based on adequate factual

determinations and grounds independent of the Question Pre-

sented in the petition. The court of appeals did not hold any

continuity of work force test applicable in § 301 actions, nor

was such a holding implicit in the result. Because the Eighth

Circuit’s decision clearly was premised on other relevant,

appropriate and adequate factual determinations, this case sim-

ply does not raise the Question Presented by Petitioners.

2. The decision below involved a determination of

successorship in a specific factual situation involving a

breach of fair representation claim and therefore does

not provide an appropriate context in which to decide

the Question Presented.

Petitioners argue that certiorari should be granted because of

conflicting decisions by this Court and other circuits on the

appropriate test for analyzing work force continuity. Petitioners

strenuously argue at the same time, however, that this Court

has not yet clearly decided the meaning of work force continuity

in § 301 actions, and that its guidance is needed on that ques-

tion. Even if this proposition is accepted, this case is not an

appropniate one for definitively deciding the issue.

As the concurring opinion suggests (Pet. A-8), in this case

the ultimate issue is “whether the Union violated its duty of fair

representation.” /d. in this duty-of-fair-representation case, the

issue of successorship is important primarily as it relates to the

Union’s decision not to pursue Petitioners’ grievance based on

the theory that Gateway was a successor to their former

employer National. Successorship itself is therefore the sine qua

non of Petitioners’ action. The concurring opinion author recog-

nizes this in stating that “[wJhatever the merits of the question

of successorship. . . | am persuaded that it is, as a matter of

law, close enough to justify the Union’s decision not to pursue

a grievance based on a successorship theory.” (Pet. A-8 to A-9)

This analysis is not in conflict with Smegal I, as Petitioners

suggest (Pet. 8). Smegal | held that the successorship issue could

not be determined as a matter of law at the summary judgment

stage. The concurring opinion’s analysis in Smegal /I occurred

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after the merits of the successorship issue had been heard, tried

and determined on the facts and law. Nothing in Smegal /

prohibits the concurring opinion’s conclusions after trial on the

merits of the successorship issue that the Union did not violate

its duty of fair representation.

CONCLUSION

For these reasons, the Petition for a Writ of certiorari should

be denied.

Respectfully submitted,