# Opposition Brief — Smegal v. Gateway Foods of Minneapolis, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0916%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 484 U.S. 928 ## Text 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 = .. ; oro + unk i 4) - » , ‘ %, + Wj. 5 < t y ¢ . N : ¥ N ¥ Z ok he ? A: 2 ; : ; 4 AN C ns ; Ps, * - . 7 \ ° ¥ : : ’ \ 2 \ a y ‘ j et e r ts ‘ i ‘ \ 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, V. 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. i) 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 3 ' . , F . 0 ial 7 * » . ; Ga > * Py . bd . J ry } F . ON fhe ‘ : > Le : ‘ ” - = s - ‘ 18) | Lis. ” ft 7 me ‘ a, 3% e ba a Pe) ? _ a) > 2 nell | meen ; : Tv} a £ » = = 4 ee a" i i= ee . 5 y} o" a fics ] ; pines eat" tet fe un. 7 "veo 7 = < 4 . ! 4 4 os } As ak +f i as eg ia? 4 - a 0 ° a =! rt 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- 4 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 5 as | . 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 6 ana 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, 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, Local No. 544 October 16, 1987 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0916%3A1. Public record. Not legal advice.