Petition for Writ of Certiorari — Panter v. American Synthetic Rubber Corp.

IN THE

SUPREME COURT OF THE UMTED STATES

October Term, 1988

GORDON PANTER, JIM MALLORY, LEO

VINCENT, J.J. EDRINGTON, JOE TEDE-

SCUCCI, R. L. FRENCH, JOHN W. VOGT,

TILFORD WAGERS, JIM BURNS, KEN-

NETH PEARL - - . Petitioners

versus

AMERICAN SYNTHETIC RUBBER CORPO-

RATION, and

UNITED RUBBER, CORK, LINOLEUM AND

PLASTIC WORKERS OF AMERICA, Local

423 and

UNITED RUBBER, CORK, LINOLEUM AND

PLASTIC WORKERS OF AMERICA, Inter-

national Union AFL-VIO - - - Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE SIXTH CIRCUIT COURT OF APPEALS

MICHAEL L. BOYLAN

807 W. Market Street

Louisville, Kentucky 40202

(502) 581-9206

Counsel for Petitioners

WESTERFIELD-BONTE CO., 619 W. KENTUCKY=<P.O, BOX 3251, LOUISVILLE, KY.

QUESTIONS PRESENTED

1. Whether Union leadership should be held respon-

sible to membership for Union leadership’s interpreta-

tion of the Union Constitution to that membership when

such interpretation later works against said members and

to the benefit of said leadership to keep said members

from voting on a contract or speaking at the meeting

where the Union voted on a contract which eliminated

the seniority and reeall rights of said members while re-

taining the recal rights of the members who were allowed

to speak and vote at the Union meeting.

2. What are the responsibilities of Labor and Man-

agement in the negotiation of an agreement with regard

to the protection of minority employees? While Peti-

tioners admit that the company and the Union have the

right to negotiate a clause which works to the detriment

of minority employees, this case presents a question of

whether the company and Union can negotiate two clauses,

one for minority employees and one for majority em-

ployees.

3. May the company and the Union negotiate a con-

tract eliminating the seniority and reeall rights of em-

ployees who are not allowed to vote on that contract and

then further restrict or limit thetr earned severance pay

by placing limitations on the employee’s rights to colleet

that severance pay.

ll

PARTIES

The Parties herein:

Gordon Panter

J. J. Edrington

John Vogt

Tilford Wagers

R. L. French

Leo Vincent

James Mallory

Joseph Tedescucci

Thomas Pearl

James Burns .....s<ss+4s00 50 ae Plaintiffs

American Synthetic Rubber Corporation

United Rubber, Cork, Linoleum and Plastic Workers of

America, Local Union No, 423

United Rubber, Cork, Linoleum and Plastie Workers of

America, International Union AFL-CIO,

OV OME Defendants

lil

TABLE OF CONTENTS

PAGE

are eka csk ben éUNécoesseees i

CN o cds dayeebvee st eescebdeecccesece il

TI cc ccc wcussccateccesccsccesncs ili

Ee usin goa eb 605s 6easeveeeeeescs iv

ET Guce i lnc deans ébehscnwccaccnescee 1

ee re Cees cis akccasuscusceaeaeeaes 1- 2

Statement of the Case .......................0005. 2- 6

Statement of Original Jurisdiction ................. 7

gl ie. una ceakeene V6an seca uws 7-20

as asada sos kd bo 6 hb ack bk 4 awk 20

eae sae Y yao boss WS sb os 80a weaken 21

iv

TABLE OF CITATIONS

Cases: PAGE

Alvey v. General Electric Company, 622 F. 2d 1979

te 8 SAE e yer re ere ere erry 9, 10

Boston Brands, Ltd. v. NLRB, 529 F. 2d 793, 91

Roa & iy i ee |) eee 14

Cannon vy. Consolidated Freightways Corp., 524

F. 2d 290, 293, LRRM 2996 (7th Cir. 1975) .... 13

Christopher v. Safeway Stores, Inc., 103 LRRM

, +f) 2:3 yg Oe a orerrre rer rr TT rr 10

Chetan 057 Ae 5 De CR Be a kno oinn ck ntncasis 10

Gilbert v. Burlington Industries, 765 F. 2d 320 (2d

CO SD uel S abcess dewsdeeeeds se2enecnewn 18

Johnson v. General Motors, 1074 (2d Cir. 1981) ... 10

Scott v. Gulf Oil Corp., 745 F. 2d 1499 (9th Cir.

Re as pa aR aa ee eke 18

Steele - Lomsrille ri Nashville R ('o., 3o2:) U. S.

192, 65 S. Ct. 226, 89 L. Ed. 173 (1944) ........ 14

UAW. v. Yardman, Incorporated, 716 F. 2d 1476

(6th Cir., 1983) Cert. Denied 1045 S. Ct. 1001

PERE curse Gk etae elke tee caki saa ktenee ke 15, 16

Vaca v. Sipes, 386, 171, 87 S. Ct. 903, 17 L. Ed. 2d

"OE Sb yep SOR ee Bs AEP Ape eS iat mie 14

Statutes:

Ok Pa ery err rr rer eer re 7

- gis Pees Ye Pee errrerer yy ree reece 7

ye ee Re OE OS os oo ores ecceeided<eadwus 7,17, 19

as ee: RES & oh -nas eceeesavedcnes atwenedecee 19

Se CUR SUES oS ccna pawinabaecetnsascéeua ss 19

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

No.

Gordon PANTER, Jim Marnory, Leo VINn-

CENT, J. J. Eprinaron, Jor Treescuvect,

R. L. Frencu, Jonn W. Voar, Tturorp

Wacers, Jim Burns, KENNETH Peart - Petitioners

v.

AMERICAN SYNTHETIC RuspBer Corvora-

TION, and

Unirep Rveper, Cork, LINoLeEUM AND

Puastic Workers or America, Loeal

Union 423 and

Unirep Rupper, Cork, LinoteumM AND

PLasttc Workers or America Interna-

tional Union AFL-CIO, CLC - - Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE SIXTH CIRCUIT COURT OF APPEALS

OPINIONS BELOW

The opinion of the Sixth Circuit Court of Appeals

is unreported and is reproduced in the Appendix

hereto. The decisions of the District Court are unre-

ported and are included in the Appendix herein. <All

decisions are included in the records designated to

this Honors ble Court.

JURISDICTION

The nature of this Petition is to chalienge the va-

lidity of Judgment pursuant to Che Labor Management

»

-

Reporting and Disclosure Act of 1959, 29 U.S.C. $401

et seq., commonly known as the employee bill of rights,

(301 of the Labor Management Relations Act, 29 U.S.C.

$185, et seq., as amended; the Employer Retirement

Income Security Aet (ERISA), 29 U.S.C. ¢1001, et

seq. (Appendix, Jnfra pp. 28-33).

The Judgment sought to be reviewed is that of the

Sixth Circuit Court of Appeals in Gordon Pauter v.

American Synthetic Rubber Corporation, et al., 1988,

(Circuit Court Number 87-5233/5839), entered April

25, 1988. (Appendix infra pp. 23-24). The decision of

the trial court is not officially reported.

The Notice of Appeal was filed February 27, 1987.

The jurisdiction of the Supreme Court of the

United States is conferred by Rule 19 of the Supreme

Court of the United States and 28 U.S.C. $2101.

STATEMENT OF THE CASE

1. Petitions were employees of the Respondent

Company and members of Respondents’ Local Union

prior to March 1, 1984. Still at issue is whether the

Petitioners continued in their employment after that

date. (Stipulation).

2. On or about March 1, 1981, the Respondent

Company and Respondent, Local Union entered into

an agreement whereby all bargaining unit employees

of Respondent Company had unlimited reeall rights.

(Ex. p. 25).

—————— t—t—s

a

oo

3. The Petitioners have been on lay-off for vary-

ing lengths of time approaching three years as of the

time of filing this action. (Stipulation #3).

4. Effective March 2, 1984, the Respondent Com-

pany and the Respondent Loeal Union entered into a

new agreement. Under the terms of this new agree-

ment, the Petitioners’ seniority and reeall rights were

ended while those not on lay-off retained unlimited

recall rights. (Stipulation #4).

». Petitioners were not allowed to vote on the new

agreement. (Stipulation #6).

6. Petitioners were not allowed to speak on behalf

of their interests regarding the new agreement (Stipn-

lation, Testimony Vol. 1, p. 14).

7 The Petitioners had been allowed to speak on

behalf of their interests at union meetings up until the

presentation of the 1984 agreement to the membership,

an agreement which eliminated the seniority and reea!]

rights of Petitioners. (Stipulation, Vel. 1, p. 114).

8. The Company and Union during negotiations

prior to notification of the L984 contract prepared and

agreed upon lists of employees whe weuld have un-

limited reeall rights and these whe would have no re-

eall rights under the terms of the 1084 agreement. The

list of employees who retained unlimited seniority and

reeall rights were identical to those employees who

were not allowed to vote on the new agreement. (Vol.

lop. 2h, p. PL Stringticld Testimomy, PHOT Pb2).

4

9. Respondent International Union concurred in

the decision that the Petitioners had no right to vote

on the new agreement. (Stipulation #7).

10. The first company proposal regarding senior-

ity and recall rights would have applied to all employ-

ees of Respondent Company. This proposal was later

changed so that it would discriminate and treat Pe-

titioners different than other employees of Respond-

ent Company. (Stringfield, Vol. 1, pp. 104-108,

Schmidt, Vol. 1, p. 154).

11. The Petitioners herein, upon their layoff and

subsequent to their layoff asked the Union leadership

what they had to do to maintain their membership in

Respondent Union. In each ease, they were informed

that they didn't have to do anything, and Were told that

the Union would take care of their membership.

(Burns, Vol. 1, p. 191, Panter, Vol. 1, pp. 48, 49, Ed-

rington, Vol. 1, pp. 81, 82, 85, Vincent, Vol. 1, p. 174,

Wagers, Vol. 1, p. 187).

12. Mr. Stringfield, the Union President told Pe-

titioners that they were no longer members of the Local

Union in January, 1984. | Panter, Vol. 1, p. 41. Tede-

seueci, Vol. 1, p. 71).

13. Petitioners were informed that they would not

be allowed to vote or speak regarding the 1984 agree-

ment on Mareh 6, L9S4.

14. In January, 1984, Mr. Stringfield told DPeti-

tioners that he was not sure whether he represented

their interests. (Panter, Vol. 1, p. 46).

5)

15. In late January, 1984, Mr. Stringfield in-

formed Petitioners that he did not represent their

interests. (Panter, Vol. 1, p. 47; Edrington, Vol. L.

p. 82; Vineent, Vol. 1, p. 183).

16. The Union leadership had taken a strike vote

and were authorized by an overwhelming majority of

the membership to call a strike during the 1984 nego-

tiations. (Stringfield, Vol. 1, p. 183).

i7. The Petitioners generally were not issued either

dues exemption or honorary withdrawal cards. The

cards were kept in a drawer at the Union hall.

18. The Company intended to hire new employees

immediately upon the signing of the 1984 agreement,

(Stringfield, Vol. 1, p. 119).

19. The offer was changed between the first offer

and final offer to make it more attractive to the people

in the plant, those whe would vote on the agreement.

(Stringfield, Vol. 1, p. 122).

20. Respondent Local Union and Respondent

Company further negotiated a deadline to the Peti-

tioners right to take their severance pay. (String-

field, Vol. 1, pp. 128-132; Schmidt, Vol. 1, pp. 160, 161).

21. Subsequent to Petitioners being placed in a

withdrawal status by the Union, the Union continued

to treat them as Union members and represented them

in grievance hearings. (Stringfield, Vol. 1, pp. 142,

145).

22. Company officials had heard rumors that the

laid off employees would not be allowed to vote.

(Schmidt, Vol. 1, pp. 157, 158).

)

ye 9 At the time of the Petitioners’ lavoff, the

treasurer of the local was Michael Dohoney. It was

the job of the treasurer to issue Honorary Withdrawal

Cards and Dues Kxemption Cards. Mr. Dohoney tes-

tified that contrary to the minutes of the Union meet-

ine Which stated that he deseribed the difference he

tween the two eards (Respondents’ Exhibit 1), he

would not have explained the difference hetween the

TWO enards Hecause he did hot understand the difference

hetween the two cards. — ( Dohoney, Vol. 2, pp. 3. % a).

24, In January, 1984, approximately two months

yior to the conclusion of negotiations, Garnell Yar-

}

I

horough, the [International Union Representative told

Petitioners to take their severaiice pay and resign

their jobs because they would not have jobs in March

(1984) (Dohoney, Vol. 2, p. 0). At the time of the

lavott of Petitioners, Dohones did not have a COpy oft

the Constitution of the fnternational Union and was

refused a eopy when he asked for one. (Dohoney,

Vol. 2, }). 1D).

95, Mike Dohoney s testimony that while on a

layoff and according to the theory of the Union, not a

member, he was counted to make a quorum at union

meetings and allowed to second motions (Dohoney,

Vol. 2, pp. 112, 113) is unrefuted and in tact in some

ways suggested by ALr. Strinefield’s testimony (String-

field, Vol. 2, p. 99), Mr. Dohoney also testified that he

introduced measures and voted on issues at meetings

until January, 1984. (Dohoney, Vol. 2, pp. 112, 113).

24. Petitioners have exhausted all administrative

remedics. (Stringfield, Vol. i. p. Baai:

STATEMENT OF ORGINAL JURISDICTION

The Trial Court herein assumed Jurisdiction pur

suant to 29 U.S.C. 9401 ct seq., 29 U.S.C. $185 et seq.,

and 29 U.S.C. $1001 et seq.; Pendent jurisdiction over

State Law { laims.

ARGUMENT

Simply summarizing the facts in the case at hand,

a situation is presented wherein the Respondent Com-

pany determined that it wanted to rid itself of certain

employees who had been laid off from their employ-

ment for a period in excess of two years. Under

Article VI of the collective bargaining agreement in

effect from March 1, 1981, any employee who had

greater than two years seniority with Respondent

Company had unlimited recall rights from lay off. This

provision had been in effect at least since 1959. Peti-

tioners were members of the group who had been laid

off from their employment for a period in excess of

two vears. Petitioners are members of Respondent

International Union. Subsequent to their layoff, they

had been accorded ali privileges of union memberships

including the right to speak on behalf of their interest.

They generaily were not allowed to vote at union meet-

ings, although at least one individual, Mike Dohoney,

Was allowed to vote, introduce items fora vote, second

treasurer’s reports and other items.

Subsequent to lavoff of Petitioners, they asked the

Local Union President, Mr. Stringfield what they had

to do to maintain their union membership privileges

8

and were regularly informed that they did not have to

do anything, but that the Union would take care of

everything for them.

In January, 1984, Mr. Stringfield met with the

Petitioners and told them that the union did not repre-

sent their interest at the negotiating table. Mr. String-

field told them that they were not union members. ALr.

Stringfield informed Petitioners that the Company was

going to demand the recall rights of Petitioners and

that the Union was going to deny the Petitioners the

right to vote on the agreement. Mr. Yarbrough, In-

ternational Union Representative told Plaintiffs to

take their severance pay from the company—this was

said, in spite of the fact that two months of negotia-

tions remained on the agreement.

In January, the Company and the Union met to

trade proposals. The first Company proposal on the

issue of seniority and recall rights would have elimin-

ated the recall rights of all employees after one year

layoff. In subsequent negotiating sessions, the Com-

pany and Union developed a system of total and com-

plete discrimination. The Petitioners and others

similary situated who were not allowed to vote were

to be terminated, while those who would be allowed to

vote on the agreement would retain. unlimited recall

rights. The Company and the Union then developed

two lists. On one list were those employees who would

be allowed to vote on the new agreement and who

would retain unlimited recall rights. On the other list

were the employees, including Petitioners, who would

not be allowed to vote on the new agreement, and who

9

would be stripped of all their seniority and recall

rights, rights earned by an average of over twenty

years service.

With the above plan in effect, My. Strinefield denied

the Petitioners and others similarly situated the rights

to speak on behalf of their interest at the mecting

where the contract was ratified. This was the first and

only time that anyone similarly situated to Plaintiffs

had been refused the right to speak on behalf of their

interests at a Union meeting.

VIOLATIONS OF THE LAW

A. The actions of the Respondents/Appellees violate the

rights of Petitioners/Appellants as established by the

Labor Management Reporting and Disclosure Act of

1959, 29 U.S.C. § 401 et seq.. commonly known as the

“Employee Bill of Rights.”

Under the terms and conditions of this statute, the

Petitioners must be granted a right to speak on behalf

of their interests and vote ou issues which affect them

directly. Alvey v. General Electric Company, 622 F.2d

1979 (7th Cir, 1980) in a case which is very nearly

identical to the case before the Court. In that ense,

certain laid off employees were not permitted by their

Union to vote on issues which directly affected their

rights of recall and seniority rights. The Court in

Alvey, supra, determined that the Union could refuse

laid-off emplovees the right to vote or speak at Union

meetings with the exception that they could not be

refused the right to vote on issues which directly atfec

their interest. The Court then determined that changes

10

in the seniority and reeall rights of individuals in-

volved in that case directly affected their interest and

ruled that they should have been allowed to vote thereon

and speak on behalf of their interest pursuant to the

Labor Management Reporting and Disclosure Act.

The defense of Respondent Local Union to this

argument seems to be that Petitioners had been issued

Honorary Withdrawal Cards under the terms of the

Union Constitution and that according to the Constitu-

tion, the Petitioners were not entitled to vote on the

labor agreement.

Under §101 et seq. of the Labor Management Re-

porting and Disclosure Act, and the ruling in Alvey v.

General Electric Co., supra, the Petitioners were en-

titled to vote on the agreement and the Union’s refusal

of this right to vote constitutes a breach of law. See

also Christopher v. Safeway Stores, Inc., 103 LRRM

9017 (E.D. TX., 1979) in which the Court determined

that the Union violated the Labor Management Re-

porting and Disclosure Act by changing seniority

rights without allowing affected employees a right to

vote thereon.

Any restriction on the voting rights of Petitioners

must be reasonable. See Johnson v. General Motors,

641 F. 2d 1074 (2nd Cir... 1981); Clayton v. ULAW.,

101 8S. Ct. 1748, 20 L. Ed. 2d 768 (1968). Enforcement

of the constitution against the Petitioners in the case

herein is unreasonable. The transeript contains ex-

haustive testimony to the effect that Petitioners were

misled by the Union leadership regarding their mem-

bership status. The Petitioners were informed by the

1]

Local Union President, Mr. Max Stringfield, said that

they did not have to do anything to maintain their

membership, that the Union would take care of them.

Mr. Dohoney, the union official who was charged with

informing the Petitioners of the existence and explan-

ation of a dues exemption card and honorable with-

drawal card testified that he did not know the differ-

ence between the two types of cards. The cards were

not distributed to the membership. The only evidence

offered by Respondent Union to refute Petitioners’

claim that they were not informed of the existence of a

Dues Exemption Card were the minutes of a union

meeting which stated that Mr. Dohoney informed the

members of the difference between a dues exemption

eard and an honorable withdrawal card and Mr. String-

field’s testimony that he informed the membership at

every meeting of the difference between the two cards.

Mr. Dohoney directly refuted the minutes of the meet-

ing, testifying that he could not explain the difference

between the two cards he did not know the difference.

Mr. Srinefield’s testimony stretches the bounds of

believability first when he testified that he informed

the membership at every meeting of the difference

between two cards and second by his own subsequent

testimony that no minutes exist of any meeting where

he informed the membership of the difference between

the two cards.

Mr. Strinefield himself seemed to be confused when

confronted with the question of the voting rights of

Petitioners. In January, 1984, he sought advice from

the International Union regarding this question.

12

Finally, the best proof was how the Union treated

these individuals. It is unrefuted in the record by any

competent testimony that Mr. Dohoney, while holding

an Honorable Withdrawal Card, was permitted to in-

troduce measures to the membership for a vote, second

motions, be counted toward a quorum and vote on

issues before the Union. It is agreed by all that the

Union represented these employees in grievance hear-

ings and before government agencies, that they were

permitted to attend Union meetings and to speak on

behalf of their interest.

The only time that the questions of dues exemption

ecards and honorable withdrawal cards arose was two

years after the layoff of Petitioners in January, 1984,

when the Company decided to do away with the senior-

ity and recall rights of the Petitioners. The Petition-

ers and others granted honorable withdrawal cards had

always been permitted to speak at membership meet-

ings with the only exception being that incident which

was of most importance to the Petitioners that incident

wherein they were prejudicially stripped of their

seniority and recall rights while those individuals who

were allowed to vote retained unlimited reeall rights.

The actions described herein, as well as the Union’s

refusal to allow Petitioners to vote on a Pension Agree-

ment which affected the probability that Petitioners

would be recalled, violates the rights of Petitioners as

euaranteed by the Labor Management Reporting and

Disclosure Act.

<< lc tC

13

B. The Actions of Respondents violated the Rights guar-

anteed Petitioners/ Appellants as guaranteed by §301 of

the Labor Management Relations Act as amended.

Pursuant to § 301 of the Labor Management Rela-

tions Act of 1947, the Union owed a duty of fair repre-

sentation to the Petitioners.

The Respondents in their bargaining, separated

Petitioners and others similarly situated from the main

body of employees, and wrote a separate contract clause

covering the Petitioners. Petitioners who were not

permitted to vote on the agreement had their seniority

and recall rights revoked. Those individuals who were

allowed to vote were specifically exempted from the

provisions of the agreement whereby the Petitioners

were terminated by the Company. In Cannon v. Con-

solidated Freightways Corp., 524 F. 2d 290, 293, 99

LRRM 2996 (7th Cir., 1975), the Court states:

To prove arbitrary or discriminatory treatment,

the Plaintiff must show that the union’s conduct

Was intentional, inviduous and directed to that

particular employee.’’

In the case before the Court, two distinct groups of

employees existed at Respondent Company, those who

were actively employed and those who had been laid off

for over two years. The Company and the Union

negotiated Article VI, Section 3(h) which states as

follows:

**3. Seniority shall be terminated for the follow-

ing reasons:

i

14

(h) FAILURE OF AN EMPLOYEE ON LAY

OFF STATUS TO BE RECALLED WITHIN

TWO YEARS OF HIS DATE OF LAYOFF

(EXAMPLE: EMPLOYEES ON LAYOFF

STATUS AS OF 3/1/84, WHO WERE LAID

OFF ON 3/1/82, SHALL BE TERMINATED

EFFECTIVE 3/1/84). HOWEVER, THIS

PARAGRAPH DOES NOT APPLY TO ANY

EMPLOYEE ACTIVELY EMPLOYED OR

WHO IS RECEIVING ACCIDENT & SICK-

NESS BENEFITS ON 3/2/84.”

We are not discussing a contract clause which is

applied equally to all, but is simply detrimental to one

group of employees. The issue in this case is a contract

clause which is per se discriminatory, a contract clause

which, on its face, treats two groups of employees com-

pletely different.

The law regarding discrimination against members

of the bargaining unit is so firmly established that the

Court could almost take judicial notice that the actions

of the Respondents herein are discriminatory and in

violation of the law. The Supreme Court in Steele v.

Louisville & Nashville R. Co., 323 U.S. 192, 65 8. Ct.

996 89 L. Ed. 173 (1944). See also, Vaca v. Sipes, 386

U.S. 171, 87 S. Ct. 9038, 17 L.. Ed. 2d 842 (1967).

See also Boston Brands, Ltd. v. NLRB, 529 F. 2d

793, 91 LRRM 2241 (7th Cir., 1976). In that case

which involved the dovetailing of seniority the Court

stated:

“fA union’s] decision may not be made solely for

the benefit of a stronger more politically favored

15

group over a minority group. To allow such arbi-

trary decisions making is contrary to the union’s

duty of fair representation.”’

These actions of Respondents violate the rights of

Petitioners as protected by $301 of the Labor Manage-

ment Relations Act. The blatant discrimination

against Petitioner is a violation of that act, and of the

duty of the Union to properly represent the rights of

the Petitioners in negotiations. Inasmuch as the agree-

ment is in violation of the law, it is void and cannot

be enforced to the detriment of the Petitioners.

C. The Seniority Rights of Petitioners/Appellants are

Status Benefits Which Cannot be Eliminated Without

the Apploval of the Petitioners/ Appellants

The unlimited reeall rights of Petitioners and others

similarly situated have been in effect since at least 1959.

In U.A.W. v. Yard-Man, Incorporated, 716, F. 2d 1476

(Sth Cir., 1983) Cert. Denied 1045 8S. Ct. 1002 (1984),

the Sixth Circuit Classified certain benefits as ‘*Status

Benetits.”’

‘‘Further, retiree benefits are in a sense ‘status

benefits’ which as such carry with them an infer-

ence that they continue so long as the prerequisite

status is maintained. Thus, when the parties con-

tract for benefits which accrue upon achievement

of retiree status, there is an inference that the

parties likely intended those benefits to continue

as long as the beneficiary remains a retiree.’’ Id.

at 1482.

D. The Action of Respondents/ Appellees in Severely Lim-

iting Petitioners/ Appellants’ Severance Rights at the

very time they became payable is a violation of the

Employee Retirement Income Security Act (ERISA 29

U.S.C. §1001 et seq

Respondent ¢

|? : | S4 Peo y

it

x | \ \I |)

: 1) I

Con |

\ AV ITI

° , , LS Re

I") : (‘oy

18

statement waiving all seniority and reeall rights and

removing their names from the seniority roster, and

in effect, giving up their right to bring the lawsuit

that is currently before the Court. (Exhibit **D”’ to

more Definite Statement).

One of the Petitioners, J.J. Edrington requested

severance pay, but refused to sign the company pre-

pared document in his and instead prepared his own

request. Said request was neither denied nor granted

by the Respondent Company.

No individuals other than Petitioners and others

who were subject to termination 3/1/84 had ever been

required to sign a document or request their severance

pay from Respondent Company. No individuals other

than Petitioners have ever been given a deadline by

Respondent company by which time they were required

to request their severance pay.

Severance pay plans are subject of the provisions

of the Employee Retirement Income Security Act

(ERISA), 29 U.S.C. $1001 et seq. See Department of

Labor Regulations at 29 C.F.R. $2510.3-1(a). See

also Gilbert v. Burlingtous Industries, 765 F. 2d 320

(2d Cir., 1985) and Scott v. Gulf Oil Corp., 754 F. 2d

1499 (9th Cir., 1985).

The actions of Respondent Company were arbitrary

and capricious and were an attempt to coerce and

manipulate the Petitioners and others who were sub-

ject to termination 3/1/84 to sign away any claim to

any legal action against Respondent Company and the

Respondent Union regarding loss of seniority rights,

19

all of which is in violation of ERISA, 29 U.S.C. $1001,

et seq., including but not limited to 29 U.S.C. 91140

and 20 U.S.C. $1141.

The case before the Court involves very simply the

type of manipulation of benefits that ERISA was

designed to protect against. Severance Pay Benefits

were manipulated and strings were attached to the

exact time that these benefits became payable.

The March 2, 1984 letter from William J. Mingus

is an example of the Company's attempt to manipulate

the system. The letter informs the employee that he

was terminated from American Synthetic Rubber

Corporation effective March 2, 1984. The Union rati-

fication election on the contract in which Petitioners

were terminated was not even held until Mareh 6, L984,

four days after the letter was written. Af the time

the letter was written terminating Petitioners, the Pe-

titioners could not have been terminated. The Union

still had an opportunity to reject the Company’s con-

tract proposal and strike for Petitioners’ seniority and

recall rghts.

Employees requesting seniority pay immediately

prior to March 2, 1984 were required to request sev-

erance pay and sign away their seniority and recall

rights, in specifie violation of the plan in effect at

that time.

Denial of severance benefits to Mr. J.J. Edrington

(Exhibit “*B’* to Response to Respondent American

Synthetic Rubber Corporation's Motions to Dismiss)

very clearly demonstrates the illegal intentions of the

20

Respondents. Mr. Edrington requested his severance

pay in writing, stating only that he did not waive his

rights under the contract or the law. The Company

did not pay Mr. Edrington’s severance pay.

The agreement entered into between the Company

and the Union (Iexhibit **C** to Respondent American

Syuthetic Rubber Corporations’ Motion to Dismiss)

requires that the employee request his severance pay in

accordance with Article NVIITE of the 1981 agreement.

Article NVITE of the 1981 Agreement did not require

that any written request be made by the employee.

The Petitioners have stated a prima facia violation

of ERISA. Their claim is supported by the docu-

mentary evidence of record in this case. The Judg-

ment of the Trial Court should be awarded to

Petitioners.

CONCLUSION

For the reasons set forth herein, the Court shall

hear the argument of Petitioners that the Judgment

of the Trial Court must be set aside and the Judgment

must be awarded to the Petitioners herein or, in the

alternative, the case must be remanded to the Trial

Court for a trial by jury.

Respectfully submitted, 2

Ni itbY 74,

MicHaeL L. Boyan

807 W. Market Street

Louisville, Kentucky 40202

(502) 581-9206

Attorney for Petitioners

CERTIFICATION

[t is hereby certified that a copy of the foregoing Pe

tition for a Writ of Certiorari to the Sixth Cireuit Court

of Appeals was mailed this 77 = day of June, 1988, to

Hon. C. Laurence Woods, III, 501 South Second Street,

Louisville, Kentucky 40202, to the Hon. John Frith stewart,

800 Marion E. Taylor Bldg., Louisville, Kentucky 40202,

and to Mr. Alexander L. Stevas, Clerk, Supreme Court of

the United States, Washington, D.C. 20543.

I) 22 -

Kw) NY {/ Z a

” e yx ae: f Jer )

APPENDIX

Os

NOT RECOMMENDED FOR FULL TEXT PUBLICATION

No. 87-5233/5839

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GorpoN Panter, et al, - - - Plaintiffs-Appellants,

vw.

AMERICAN SYNTHETIC RUBBER

Co. et al, - - - - - Defendants-Appellees.

On Appeal from the United States District Court

For the Western District of Kentucky

Decided and Filed April 25, 1988

Berore: Krupansky and We.iFrorpD, Circuit Judges; and

GiumorE,* District Judge

Pdr CurtamM. Plaintiffs-appellants Gordon Panter and nine

other former employees of American Synthetic Rubber

Corp. (ASCR), all of whom were also former members of

the United Rubber, Cork, Linoleum and Plastic Workers of

America International Union and its affiliate Local 423

(the Unions), have appealed from the district court’s grant

of summary judgment for defendants ASRC and the Un-

ions on all issues in this action alleging violations of the

Labor Management Relations Act, 29 U.S.C. § 185 (the

LMRA), the Labor Management Reporting and Disclosure

*TIon. Horace Gilmore, United States District Judge, Eastern

District of Michigan, sitting by designation.

24

Act. 29 U.S.C. § 401 (LMBDA), the Kentucky Age Dis-

crimination statute, and ERIS.\.

Upon consideration of the entire record, the briefs filed

by the respective parties, and the contentions raised at

oral argument, this court AFFIRMS the decision of the dis-

trict court for the reasins stated by Judge Allen in his

Memorandum Opinions of December 1%, 1984, November 1,

1985, May 1. 1986 and September 5, 1986.

25

IN THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. C 84-0293-L(A)

Gorpvon PANTER, et al., - - - - - Plaintiffs,

v.

AMERICAN SyNTHETIC RUBBER

CorRPORATION, et al., . . - - Defendants.

MEMORANDUM OPINION AND ORDER

This action is before the Court on Defendant’s Ameri-

can Synthetic Rubber Corporation, motion for summary

judgment on the ground that Plaintiff Edrington failed to

exhaust his contractual remedies, and Plaintiff's motion

to set aside the judgment entered in this case an September

5, 1986, dismissing all claims against Defendants with the

exception of Edrington’s claim against ASRC for sever-

ance pay. The Court will discuss Plaintiffs motion first.

Plaintiffs’ complaint alleges that Defendants violated

the Employee Retirement Income Security Act (“ERISA”),

29 U.S.C. § 1001 et seq. by denying their claims to sever-

ance pay. In March 1984 Defendant ASRC and Defendant

United Rubber, Cork, Linoleum and Plastic Workers of

Ameriea, Local Union No. 423 (“Union”), which is affiliated

with Defendant United Rubber, Cork, Linoleum and Plastic

Workers of America, International Union, AFL-CIO, CLC,

negotiated a new collective bargaining agreement. Under

that agreement, all employees who had been laid-off for

more than two years lost their right to recall. Under the

|

26

former agreement, laid-off employees with two or more

years of seniority retained recall rights no matter how long

they had been on layoff unless they requested and received

severance pay. Under the new agreement Union members

would have forty-eight hours after the new contract was

ratified in which to request severance pay.

J.J. Edrington was the only plaintiff in the instant case

who requested severance pay. Both the new contract and

the old contract provided that employees who decided to

take severance pay would lose their seniority and recall

rights upon receipt of the severance pay.

The Court rejected Plaintiff's contention that Defend-

ant violated ERISA. Under Sutton v. Weirton Steel, 724

F. 2d 406 (4th Cir. 1983), employees’ rights to severance

pay may be modified without violating ERISA and must

be governed by employment agreements. The Court, there-

fore, held that the right to severance pay was subject to

negotiation between the Union and the ASRC and refused

to interfere with that ageement. The Court dismissed all

claims against the Unions and all claims against ASRC,

with the exception of Edrington’s.

The Court will sustain its September 5, 1986, order.

Plaintiffs did not pay Union dues or seek dues exemptions

while on layoff and therefore forfeited their Union mem-

bership and lost their rights to participate in the ratifi-

‘ation vote of the contract. Further, the Union gave Plain-

tiffs advance notice that they would not be allowed to

participate in the ratification vote and advised the Plain-

tiffs to obtain an attorney to represent their interests.

Next, ASRC’s motion for summary judgment on the

ground that Edrington failed to exhaust his administrative

remedies under the collective bargaining agreement will

he granted. Edrington claims that ASRC has failed to pay

his severance pay in violation of the new contract. Edring-

27

ton, however, did not make use of the grievance and pro-

cedures provided in Article V of that agreement, which

culminates in arbitration. Edrington’s claim is based upon

a breach of the collective bargaining agreement and he is

bound by the terms of that agreement as it governs the

manner in which contractual rights may be enforced.

Althoug Edrington argues that ASRC’s motion should

be denied because it would have been futile for him to have

pursued his contractual remedies and that he should, there-

fore, be excused from doing so, the courts insist upon a

clear showing of futility before excusing a failure to ex-

haust. Miller v. Chrysler Corp., 748 ¥. 2d 323 (6th Cir.

1984). In the instant case, the Union’s president nego-

tiated for Plaintiff's rights to apply for severance pay and

there is no indication that the Union would have been

hostile toward Edrington’s grievance.

Accordingly,

Ir Is Orperep that Plaintiffs’ motion to set aside the

Court’s September 5, 1986 order be, and it hereby is, denied.

Ir Is Fcrtuer Orverep that Defendant ASRC’s motion

for summary judgment be, and it hereby is, granted.

Ir Is Furtuer Orperep that Plaintiff J.J. Edrington’s

complaint against ASRC be, and it hereby is, dismissed

with prejudice.

This is a final and appealable order and there is no

just cause for delay.

Dated ___

(s) Charles M. Allen

Charles M. Allen, Senior Judge

ee: Counsel of Record

28

§ 185. Suits By and Against Labor Organizations

Venue, amount, and citizenship

(a) Suits for violation of contracts between an em-

ployer and a labor organization representing employees in

an industry affecting commerce as defined in this chapter,

or between any such labor organizations, may be brought

in any district court of the United States having jurisdic-

tion of the parties, without respect to the amount in con-

troversy or without regard to the citizenship of the parties.

Responsibility for acts of agent; entity for purposes of suit;

enforcement of money judgments

(b) Any labor organization which represents employees

in an industry affecting comerce as defined in this chapter

and any employer whose activities affect commerce as de-

fined in this chapter shall be bound by the acts of its agents.

Any such labor organization may sue or be sued as an

entity and in behalf of the employees whom it represents

in the courts of the United States. Any money judgment

against a labor organization in a district court of the

United States shall be enforceable only against the organi-

zation as an entity and against its assets, and shall not be

enforceable against any individual member or his assets.

Jurisdiction

(c) For the purposes of actions and proceedings by or

against labor organizations in the district courts of the

United States, district courts shall be deemed to have

jurisdiction of a labor organization (1) in the district in

which such organization maintains its principal office, or

(2) in any district in which its duly authorized officers or

agents are engaged in representing or acting for employee

members.

iain eal

29

Service of process

(d) The service of summons, subpoena, or other legal

process of any court of the United States upon an officer

or agent of a labor organization, in his capacity as such,

shall constitute service upon the labor organization.

Determination of question of agency

(e) For the purposes of this section, in determining

whether any person is acting as an “agent” of another per-

son so as to make such other person responsible for his acts,

the question of whether the specific acts performed were

actually authorized or subsequently ratified shall not be

controlling.

§ 401. Congressional declaration of findings, purposes,

and policy

(a) Standards for labor-management relations

The Congress finds that, in the public interest, it eon-

tinues to be the responsibility of the Federal Government

to protect employees’ rights to organize, choose their own

representatives, bargain collectively, and otherwise engage

in concerted activities for their mutual aid or protection;

that the relations between employers and labor organiza-

tions and the millions of workers they represent have a

substantial impact on the commerce of the Nation; and that

in order to accomplish the objective of a free flow of com-

merce it is essential that labor organizations, employers,

and their officials adhere to the highest standards of re-

sponsibility and ethical conduct in administering the affairs

of their organizations, particularly as they affect labor-

management relations.

30

(b) Protection of rights of employees and public

The Congress further finds, from recent investigations

in the labor and management fields, that there have been

a number of instances of breach of trust, corruption, dis-

regard of the rights of individual employees, and other

failures to observe high standards of responsibility and

ethical conduct which require further and supplementary

legislation that will afford necessary protection of the

rights and interests of employees and the publie generally

as they relate to the activities of labor organizations,

employers, labor relations consultants, and their officers

and representatives.

(c) Necessity to eliminate or prevent improper practices

The Congress, therefore, further finds and declares that

the enactment of this chapter is necessary to eliminate or

prevent improper practices on the part of labor organiza-

tions, employers, labor relations consultants, and their

officers and representatives which distort and defeat the

policies of the Labor Management Relations Act, 1947, as

amended [29 U.S.C.A. § 141 et seq.|, and the Railway Labor

Act, as amended | 45 U.S.C.A, § 151 et seq.}, and have the

tendency or necessary effect of burdening or obstructing

commerce by (1) impairing the efficiency, safety, or opera-

tion of the instrumentalities of commerce; (2) occurring

in the current of commerce; (3) materially affecting, re-

straining, or controlling the flow of raw materials or manu-

factured or processed goods into or from the channels of

commerce, or the prices of such materials or goods in com-

meree: or (4) eausing diminution of employment and wages

in such volume as substantially to impair or disrupt the

market for goods flowing into or from the channels of

commerce.

bl

§ 1001. Congressional findings and declaration of policy

(a) Benefit plans as affecting interstate commerce and the

Federal taxing power

The Congress finds that the growth in size, scope, and

numbers of employee benefit plans in recent years has been

rapid and substantial; that the operational scope and eco-

nomic impact of such plans is increasingly interstate; that

the continued well-being and sceurity of millions of employ-

ees and their dependents are directly affected by these

plans; that they are affected with a national public interest ;

that they have become an important factor affecting the

stability of employment and the successful development

of industrial relations; that they have become an important

factor in commerce because of the interstate character of

their activities, and of the activities of their participants,

and the employers, employee organizations, and other en-

tities by which they are established or maintained; that a

large volume of the activities of such plans is carried on by

means of the mails and instrumentalities of interstate

comerce; that owing to the lack of employee information

and adequate safeguards concerning their operation, it is

desirable in the interests of employees and their beneficiar-

ies, and to provide for the general welfare and the free flow

of commerce, that disclosure be made and safeguards be

provided with respect to the establishment, operation, and

administration of such plans; that they substantially affect

the revenues of the United States beeause they are afforded

preferential Federal tax treatment; that despite the enor-

mous growth in such plans many employees with long years

of employment are losing anticipated retirement benefits

owing to the lack of vesting provisions in such plans; that

owing to the inadequacy of current minimum standards,

the soundness and stability of plans with respect to ade-

ae

quate funds to pay promised benefits may be endangered ;

that owing to the termination of plans before requisite

funds have been accumulated, employees and their bene-

ficiaries have been deprived of anticipated benefits; and

that it is therefore desirable in the interests of employees

and their beneficiaries, for the protection of the revenue

of the United States, and to provide for the free flow of

commerce, that minimum standards be provided assuring

the equitable character of such plans and their financial

soundness.

(b) Protection of interstate commerce and beneficiaries by

requiring disclosure and reporting, setting standards

of conduct, ete., for fiduciaries

It is hereby declared to be the policy of this chapter to

protect interstate commerce and the interests of partici-

pants in employee benefit plans and their beneficiaries, by

requiring the disclosure and reporting to participants and

beneficiaries of financial and other information with respeet

thereto, by establishing standards of conduct, respons!

bility, and obligation for fiduciaries of employee benefit

plans, and by providing for appropriate remedies, sane-,

tions, and ready access to the Federal courts.

(c) Protection of interstate commerce, the Federal taxing

power, and beneficiaries by vesting of accrued benefits,

setting minimum standards of funding, requiring

termination insurance

[t is hereby further declared to be the policy of this

chapter to protect interstate commerce, the Federal taxing

power, and the interests of participants in private pension

plans and their beneficiaries by improving the equitable

character and the soundness of such plans by requiring

them to meet minimum standards of funding, and by re

quiring plans termination msurance,

§ 1140. Interference with protected rights

It shall he unlaw ful fo. any person to discharge, fine,

suspend, expel, discipline, or discriminate against a partici-

pant or beneficiary for exercising any right to which he is

entitled under the provisions of an employee benefit plan,

this subchapter, section 1201 of this title, or the Welfare

and Pension Plans Disclosure Act [29 U.S.C.A. B01 et

seq.|, or for the purpose of interfering with the attainment

of any right to which such participant may become entitled

under the plan, this subchapter, or the Welfare and Pension

Plans Disclosure Act. It shall be unlawful for any person

to discharge, fine, suspend, expel, or discriminate against

any person because he has given information or has testi

fied or 1s about to testify 1)) any Inquiry Or proces ding re

lating to this chapter or the Welfare and Pension Plans

Disclosure Act. The prov ISIONS of section 1132 of this title

shall be applicable in the enforcement of this section.

§ 1141. Coercive interference

[tt shall be unlawful for any person through the use of

fraud, force, violence, or threat ot the use of force or v10

lence, to restrain, coerce, intimidate, Or attempt to restrain,

coerce, or intimidate any participant or beneficiary for the

purpose of interfering with or preventing the exercise of

any right to which he is or may become entitled under the

plan, this subchapter, section 1201 of this title, or the Wel]

tare and Pension Plans Disclosure Act |29 U.S.C.A. 6 301

et seq.|. Any person who willfully violates this section

hall be fined $10,000 o1 Impri oned for not more than one

Vear, O01 hoth.