Opposition Brief — American Postal Workers Union v. United States Postal Service

s spre ws Court U.S,

' i J aS r |

| iuL 13 1980

No. 89-1953 | : CLERY

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woes

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

AMERICAN POSTAL WORKERS UNION, AFL-CIO,

Petitioner,

Vv.

UNITED STATES POSTAL SERVICE,

and

NATIONAL POST OFFICE MAIL HANDLERS, WATCHMEN AND

GROUP LEADERS DIVISION OF THE LABORERS’ INTERNA-

TIONAL UNION OF NORTH AMERICA, AFL-CIO,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

ROBERT CON NERTON

(Counsel of Record)

ORRIN BAIRD

CONNERTON, RAY & SIMON

1920 L Street, N.W.

Fourth Floor

Washington, D.C. 20006

(202) 466-6790

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

® oe eee 60

"BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the federal courts have authority pursuant to

39 U.S.C. § 1208(b) to order tripartite arbitration of a

jurisdictional dispute between two unions where there

exists a contractual nexus between the two unions and

a common employer and there are no procedural obstacles

to tripartite arbitration.

(i)

TABLE OF CONTENTS

Page

gt | i

8g |) iv

STATEMENT OF THE CASE .....W0000000000..22.22-0-...---- 2

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

I. THERE IS NO CONFLICT AMONG THE

COURTS ON THE ISSLi PRESENTED

ee iscvssnwnnsdencnnstdccnessoeesseranoeee 3

II. THIS CASE DOES NOT PRESENT AN IM-

PORTANT, RECURRING ISSUE OF LABOR

as cah ce nsssvatnophansensecnssnsnanoncsannee 7

Ill. THE DECISION BELOW WAS CORRECTLY

ES 11

Neen ee eis iadechnneekccusnncnnesannesccseseneonsees 18

(iii)

iv

TABLE OF AUTHORITIES

Cases

Amalgamated Meat Cutters, Local 299 v. Alpha

Beta Markets, Inc., 96 L.R.R.M. 2509 (S.D.

Renee eat irae AA ah aed 9 OR Ee aR

American Postal Workers Union v. United States

Postal Service, 823 F.2d 466 (11th Cir. 1987)...

Baltimore Typographical Union No. 12 v. A. S.

Abell Co., 588 F.2d 1347 (4th Cir. 1979), aff’d

mem., 441 F. Supp. 596 (D. Md. 1977) .....0000.0.....

Bell Aerospace v. Local 516, United Auto Workers,

500 F.2d 921 (2d Cir. 1974) ............ ta eS

Bowen v. United States Postal Service, 459 U.S.

212 (1983) (separate opinion of White, J.) ........

Boys Markets, Inc. v. Retail Clerks Local 770, 398

RUN I el REN CAR

Columbia Broadcast System, Inc. v. American Re-

cording & Broadcast Ass’n, 414 F.2d 1826 (2d

Page

NPI scidticecinnieainntiisicdictensinianteia 4, 5, 6, 7, 8, 14, 15, 18

Int’l Bh’d of Teamsters Local 174 v. Lucas Flour

ag Ms I I icici iets sin

John Wiley & Sons v. Livingston, 376 U.S. 548

RRR SIC TSN UTC a es oD

Laborers’ Int’l Union, Local 309 v. W. W. Bennett

Construction Co., Inc., 686 F.2d 1267 (7th Cir.

SARIS tee COE Alert OF Op RNA RS ERS Daal

Local 552, American Broadcasting Co. v. Nat’l

Ass’n of Broadcast Employees and Technicians,

112 L.R.R.M. 2446 (N.D. Cal. 1982) 000000...

Louisiana-Pacific Corp. v. Int’l Bh’d of Electrical

Workers Local 2294, 600 F.2d 219 (9th Cir.

I accent dst tener ee ee tee

National Ass’n of Letter Carriers v. United States

Postal Service, 590 F.2d 1171 (D.C. Cir. 1971)..

National Post Office Mail Handlers v. American

Postal Workers Union, Nos. 89-5272 & 89-5273

Sree Sine

N.L.R.B. v. Radio and Television Broadcast Engi-

neers Union, 364 U.S. 573 (1961) ......000- ee...

RCA Corp. v. Local Union 1666, Int’l Bh’d of Elec-

trical Workers, 633 F.Supp. 1009 (E.D. Pa.

RSS Niner eee PIL OMe Ge INARA SOROS aa ae

13, 14

3,14

6, 8

7,8

17

V

TABLE OF AUTHORITIES—Continued

Page

Textile Workers Union v. Lincoln Mills, 353 U.S.

ERE ERS SRR Ce migUe eceesnety REED won tonee elo 18, 15, 18

Transportation-Communication Employees Union

v. Union Pacific Railroad Co., 385 U.S. 157

| FREESE C= 9 SEES SA cee ees om LCR 3, 4, 14

United Brick and Clay Workers v. Hydraulic Press

Brick Co., 371 F.Supp. 818 (E.D. Mo. 1974) ...... 7

United Industrial Workers v. Kroger Co., 900 F.2d

RCS oni 6, 7,8

United Paperworkers Int’l Union v. Misco, Inc.,

nes 17

United States Postal Service v. American Postal

Workers Union, 893 F.2d 1117 (9th Cir. 1990)... 1,18

United Steelworkers v. American Manufacturing

oS ge | I a ne ane nN 12

United Steelworkers v. Crane Co., 456 F.Supp. 385

(W.D. Pa. 1978), rev’d in part on other grounds,

©» Ge & Eo AS, | RRR eeanecerCeneneN 7

United Steelworkers v. Enterprise Wheel and Car

is Bs TEIN UID orc ceniinsiscacesncccnrccescinrsincse 12,17

United Steelworkers v. Warrior & Gulf Navigation

fre | Ge ) er eeneeeree 3, 4, 5, 12, 14

Window Glass Cutters League v. American St.

Gobuin Corp., 428 F.2d 353 (8d Cir. 1970) __..... 6, 8,

12

Arbitration Awards

United States Postal Service and National Ass’n

of Letter Carriers, USPS Case No. H4N-4J-C

Statutes

ce _, ee e 9

ala eenciasemmins 16

Norris-LaGuardia Act, 29 U.S.C. §§ 101 et seq..... 14

Labor Management Relations Act, 29 U.S.C. §§ 141

abla Sintiginanaicnn 15

Section 8(b) (4) (D), 29 U.S.C. § 158(b) (4)

RRA eat ey ee oe 16

Section 10(k), 29 U.S.C. § 160(k) ............0......... 16

Section 301 (a), 29 U.S.C. § 185 (a) —.................. 3, 4, 5,

10, 12, 13, 15, 18

vi

TABLE OF AUTHORITIES—Continued

Page

Postal Reorganization Act of 1971, 39 U.S.C.

SS 101 60 GOG. vvicuscsume es 15

Section 410(b) (2), 39 U.S.C. § 410(b)(2) _..... 16

Section 1205, 39 U.S.C. § 1205 0. 15

Section 1206, 39 U.S.C. § 1206 0. 15

Section 1207, 39 U.S.C. § 1207 _......... nl oa 15, 16

Section 1208 (b), 39 U.S.C. § 1208 (b) 0... 4, 10,

12, 15, 18

Section 1209, 39 U.S.C. § 1209 ...00. 15

Railway Labor Act, 45 U.S.C. §§ 151 et seq............. 3

Section 183 (i), 45 U.S.C. § 188 (i) 000. 4

Federal Rules Civil Procedures

Rule 19 (a), 98 U.ISs acca 11

Rule 20(a), 2B UA ccccssee os PCa 11

Rule 22(1), 36 UG. ..:ccaeee 12

Rute 34 (a) (2), BB Tide cases 11

Rule 24 (Bb) (3B), BB WAG ccvsnscsetenstinpnnesiautantnemsancian 11

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1953

AMERICAN POSTAL WORKERS UNION, AFL-CIO,

» Petitioner,

UNITED STATES POSTAL SERVICE,

and

NATIONAL POST OFFICE MAIL HANDLERS, WATCHMEN AND

GROUP LEADERS DIVISION OF THE LABORERS’ INTERNA-

TIONAL UNION OF NORTH AMERICA, AFL-CIO,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF IN OPPOSITION

The respondent National Postal Mail Handlers Union,

a division of the Laborers’ International Union of North

America, AFL-CIO' hereby opposes the petition for a

writ of certiorari to the United States Court of Appeals

for the Ninth Circuit to review the decision and judg-

ment in United States Postal Service v. American Postal

Workers Union, 893 F.2d 1117 (9th Cir. 1990) filed by

the American Postal Workers Union, AFL-Ci0.

1 Since commencement of this action, the respondent union has

changed its name to National Postal Mail Handlers Union, a division

of the Laborers’ International Union of North America, AFL-CIO.

2

STATEMENT OF THE CASE

Respondent National Postal Mail Handlers Union

(“Mail Handlers”) supplements the facts set forth in the

American Postal Workers Union’s (“APWU”) petition

as follows: *

The Mail Handlers and the APWU have separate, but

very similar, collective bargaining agreements with the

Postal Service covering wages, hours, terms and condi-

tions of employment. Pet. App. 2a. Both agreements in-

corporate, via an identical Article 19, a document en-

titled Regional Instruction 399, “Mail Processing Work

Assignment Guidelines” (“RI-399”). E.R. 112-113, 128

& 147. Thus, all three parties of this lawsuit are con-

tractually bound by the provosions of RI-399. Pet. App.

3a.

RI-399 was issued by the Postal Service in 1979. It

sets forth each mail processing operation performed by

Postal Service employees and designates the primary

craft for the performance of each function—either the

clerk craft (represented by APWU) or the mail handler

craft (represented by the Mail Handlers). E.R. 112 &

134-139. For many years the Mail Handlers, the APWU

and the Postal Service have used RI-399 as the basis for

resolving work jurisdiction disputes between the Mail

Handlers and the APWU. E.R. 113.

The grievance-arbitration provisions of the Mail Han-

dlers-Postal Service and the APWU-Postal Service col-

lective bargaining agreements are in large part identical.

E.R. 119-120, 122-127 & 141-146. Both agreements con-

tain identically-worded, broad arbitration provisions cov-

ering jurisdictional disputes. Pet. App. 7a. Each agree-

ment provides for a three-or-four-step procedure involv-

2 As in the petition, citations to the Petitioner’s Appendix shall

be denominated as “Pet. App. ” Citations to documents con-

tained in the Excerpt of Record filed in the Court of Appeals shall

be denominated “E.R. :

3

ing discussions between union and management officials

at successively higher levels followed by arbitration be-

fore a neutral arbitrator. E.R. 119-120, 122-127 & 141-

146.

Although the arbitrator in this case denied interven-

tion to the Mail Handlers because he believed he did not

have authority under the APWU-Postal Service agree-

ment to permit intervention over the APWU’s objection,

he did find that the Mail Handlers clearly had a “strong,

legitimate interest in the outcome” of the dispute, that

there was no merit to APWU’s claim that the Mail Han-

dlers’ interests were sufficiently protected by the Postal

Service’s presence and that tripartite arbitration was

clearly the most sensible way to proceed. Pet. App. 3a

& 14a; E.R. 5-6 & 10.

REASONS FOR DENYING THE WRIT

I. THERE IS NO CONFLICT AMONG THE COURTS

ON THE ISSUE PRESENTED HEREIN.

This Court previously considered the issue of tripar-

tite resolution of union jurisdictional disputes in Trans-

portation-Communication Employees Union v. Union Pa-

cific Railroad Co., 385 U.S. 157 (1956) (hereinafter cited

as Transportation-Communication Employees). Although

that case arose under the Railway Labor Act, 45 U.S.C.

$$ 151 et seq., the Court relied on cases * decided under

Section 301(a) of the Labor-Managament Relations Act,

29 U.S.C. § 185(a) (hereinafter cited as Section 301).

In that case, the Court noted that a collective bargain-

ing agreement “is not an ordinary contract” but “a gen-

eralized code to govern a myriad of cases which the

draftsmen cannot wholly anticipate” and “calls into being

3 John Wiley & Sons v. Livingston, 376 U.S. 543 (1964) and

United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S.

574 (1960).

4

a new common law—the common law of a particular in-

dustry or of a particular plant.” Transportation-

Communication Employees, 385 U.S. at 160-61 quoting

United Steelworkers v. Warrior & Gulf Navigation Co.,

363 U.S. at 578-79. The Court rejected the argument

that jurisdictional disputes between two unions should

be decided on the basis of one union’s collective bargain-

ing agreement considered in isolation from all other

agreements. Transportation-Communication Employees,

385 U.S. at 160. The Court concluded:

In order to interpret such an agreement it is neces-

sary to consider the scope of other related collective

bargaining agreements, as well as, the practice, us-

age and custom pertaining to all such agreements.

This is particularly true when the agreement is re-

sorted to for the purposes of settling a jurisdictional

dispute over work assignments.

Id., at 161. The Court ordered the Railroad Adjustment

Board, the statutory equivalent of an arbitrator in the

railroad industry,’ to decide jurisdictional disputes be-

tween two unions in a single tripartite proceeding.

Transportation-Communication Employees, 385 U.S. at

165.

All of the appellate and district court cases decided

subsequent to the Transportation-Communications Em-

ployees case are in agreement with that decision and the

decision of the Court of Appeals in this case. The lead-

ing case ordering tripartite arbitration under Section

301° is Columbia Broadcast System, Inc. v. American

* See 45 U.S.C. § 183(i).

5 This case is actually brought under Section 1208(b) of the

Postal Reorganization Act, 39 U.S.C. § 1208(b), which is the postal

analogue to Section 301. The federal courts freely apply Section

301 law to actions brought under 39 U.S.C. § 1208(b). See Bowen

v. United States Postal Service, 459 U.S. 212, 232 n2 (1983)

(separate opinion of White, J.); American Postal Workers Union

v. United States Postul Service, 822 F.2d 466, 469 (11th Cir. 1987):

5

Recording & Broadcast Ass’n, 414 F.2d 1326 (2d Cir.

1969) (hereinafter cited as CBS). Noting that ‘there

is ample authority holding that § 301 gives the federal

courts broad jurisdiction to deal with many types of con-

troversies that arise between labor and management,”

the Second Circuit held that a district court does have

jurisdiction to order tripartite arbitration over a juris-

dictional dispute between two unions because io do so

would be “in line with the overall national policy of fur-

thering industrial peace by resort to agree-upon arbitra-

tion procedures.” CBS, 414 F.2d at 1328 citing United

Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S.

at 577-78.

The Second Circuit found that tripartite arbitration

was appropriate in that case because both unions had

agreements with a common employer containing broad

arbitration provisions covering jurisdictional disputes

and the second union had agreed to arbitrate its dispute

before an arbitrator who had been chosen in accord with

first union’s agreement. CBS, 414 F.2d at 1329.

Prior to the decision by the Court of Appeals in this

case, the Third, Fourth and Seventh Circuits have, at

least in dicta, endorsed the rationale of CBS.° The

Fourth Circuit affirmed (albeit without opinion) a deci-

sion compelling tripartite arbitration over a jurisdic-

tional dispute between two unions. Baltimore Typo-

graphical Union No. 12 v. A. S. Abell Co., 588 F.2d

National Ass’n of Letter Carriers v. United States Postal Service,

590 F.2d 1171, 1174 (D.C. Cir. 1971).

6In Bell Aerospace v. Local 516, United Auto Workers, 500 F.2d

921, 923 (2d Cir. 1974), the Second Circuit followed its decision

in CBS. The District of Columbia Circuit recently held in a case

involving this same issue, the same parties and essentially the

same facts, that under the doctrine of issue preclusion, the decision

of Court of Appeals in this case precluded the APWU from reliti-

gating this issue in a different circuit court. National Post Office

Mail Handlers v. American Posial Workers Union, Nos. 89-5272 &

89-5273 (D.C. Cir. July 3, 1990).

6

1347 (4th Cir. 1979), aff'g mem., 441 F.Supp. 596 (D.

Md. 1977). This district court had relied on CBS in or-

dering tripartite arbitration.

The Seventh Circuit, in Laborers’ International Union

v. W. W. Bennett Construction, 686 F.2d 1267, 1273-74

(7th Cir. 1982), expressly endorsed CBS as long as both

unions have arbitration agreements with the employer.

In Bennett, the court actually declined to order tripartite

arbitration but only because there was no evidence of an

arbitration agreement between one of the two competing

unions and the employer. Jd. at 1276-78. However, the

Seventh Circuit specifically noted that the employer could

file a new Section 301 action to apply CBS if it could

allege sufficient facts. Id. at 1278.

In Window Glass Cutters League v. American St. Ge-

bain Corp., 428 F.2d 353 (3d Cir. 1970), the Third Cir-

cut approved the rationale of CBS in dicta and dismissed

the union’s action against the employer seeking bipartite

arbitration of a jurisdictional dispute because of the

union’s failure to join the other interested union under

Fed.R.Civ.P. 19 as an additional defendant in the case.

Relying on the Court of Appeals decision here, the

Sixth Circuit very recently refused to order tripartite

arbitration because there was no contractual nexus be-

tween the two unions and the employer. United Indus-

trial Workers v. Kroger Co., 900 F.2d 944, 947 (6th Cir.

1990). In that case, one union sued an employer to com-

pel a bipartite arbitration over the transfer of work by

the employer from the members of the first union to the

members of a second union. The employer attempted to

interplead the second union which did not want to par-

ticipate in the arbitration. The Sixth Circuit denied the

interpleader.

It distinguished the Court of Appeals decision here on

the ground that there was no contractual nexus since the

employer had not initiated a grievance against the sec-

7

ond union as their contract specifically required.’ Jd. The

Sixth Circuit also noted, relying again on the Court of

Appeals decision here, that there were procedural obsta-

cles to tripartite arbitration since the two collective

bargaining agreements called for different types of arbi-

tration. Id. at 947-48.

In addition to these cases, all of the district courts that

have been confronted with circumstances similar to CBS

have compelled tripartite arbitration of the jurisdictional

dispute in question: RCA Corp. v. Local Union 1666,

Int'l Bh’d of Electrical Workers, 633 F.Supp. 1009 (E.D.

Pa. 1986) ; Local 552, American Broadcasting Co. v. Nat’l

Ass’n of Broadcast Employees and Technicians, 112

L.R.R.M. 2446 (N.D. Cal. 1982); c.f. United Brick and

Clay Workers v. Hydraulic Press Brick Co., 371 F.Supp.

818, 825 (E.D. Mo. 1974) (tripartite arbitration ordered

between union, former employer and successor employer) ;

United Steelworkers v. Crane Co., 456 F.Supp. 385, 387-

89 (W.D. Pa. 1978) (same), rev’d in part on other

grounds, 605 F.2d 714 (3d Cir. 1979) .*

II. THIS CASE DOES NOT PRESENT AN IMPOR-

TANT, RECURRING ISSUE OF LABOR LAW.

1. The Petitioner APWU contends that the issue pre-

sented by this case is of importance because it “has arisen

with some frequency.” Pet. p. 20. The Respondent Mail

7 Although no formal grievance was filed by the Mail Handlers

here, both the Mail Handlers and the Postal Service desired tripar-

tite arbitration. The APWU, which initiated the grievance, did not

want tripartite arbitration. In Kroger, on the other hand, the

second union neither initiated the grievance nor desired tripartite

arbitration, ana che first unon desired only bipartite arbitration.

8 The only district court decision to deny tripartite arbitration is

Amalgamated Meat Cutters, Local 299 v. Alpha Beta Markets, Inc.,

96 L.R.R.M. 2509 (S.D. Cal. 1977), which did so because the second

union, which the first union sou;rht to join in the arbitration, had

no agreement with the employer. Thus, it is consistent with CBS

and with the Court of Appeals in this case.

8

Handlers respectfully disagree. Given the frequency with

which jurisdictional disputes between competing unions

arise and the intensity of the feelings that often accom-

pany those disputes, it is surprising that there has only

been a handful of cases in the last 20 years which have

addressed this issue. The CBS case was decided over 20

years ago. The decision below is only the second time

that an appellate court has addressed the issue under the

same circumstances- -i.e., where both unions have agree-

ments to arbitrate jurisdictional disputes—since the CBS

case was decided.® In the only other appellate decision,

the Fourth Circuit affirmed without an opinion the dis-

trict court’s order compelling tripartite arbitration where

both unions requested tripartite arbitration. Baltimore

Typographical Union No. 12 v. A.S. Abell Co., 588 F.2d

1349, aff'g mem., 441 F. Supp. 596.

There have been only three other reported district court

decisions since the CBS decision which address this issue

and which were not appealed.’® In light of the unanimity

of the courts on this issue, it is unlikely that many

unions, if any at all, will bother to incur the cost of

litigating this issue in the future.

The scarcity of cases is not surprising given the fact

that there seems to be no dispute that tripartite arbitra-

tion is the most efficient, economical and sensible way to

resolve jurisdictional disputes between labor unions. See

Pet. App. 8a. Thus, in the vast majority of cases, either

® As discussed infra at pp. 5-7, the Third, Sixth and Seventh Cir-

cuits have touched upon the issue, albeit under different circum-

stances: Window Glass Cutters League v. American St. Gobain

Corp., 428 F.2d 353; United Industrial Workers v. Kroger Co., 900

F.2d 944. Laborers’ Int’l Union, Local 309 v. W. W. Bennett Con-

struction Co., Inc., 686 F.2d 1267.

10 RCA Corp. v. Local Union 1666, Int'l Bh’d of Electrical Workers,

633 F.Supp. 1009; Local 552, American Broadcasting Co. v. Nat'l

Ass’n of Broadcast Employees and Technicians, 112 L.R.R.M. 2446;

Amalgamated Meat Cutters Local 299 v. Alpha Beta Markets, Inc.,

96 L.R.R.M. 2509.

9

the arbitrator permits intervention by the competing

union, the unions voluntarily choose to participate in tri-

partite arbitration or they devise some other method of

private dispute resolution. It is only when one union

perceives that it substantially benefits from multiple bi-

partite arbitrations that the issue is ever litigated.

Given the infrequency with which the issue is litigated

and the fact that unions and employers have devised pri-

vate alternative methods of resolving jurisdictional dis-

putes, the importance of deciding the issue presented by

this case is not significant.

2. Even among the parties to this case, there is little

likelihood that this issue will recur. It is likely that any

future disputes over intervention by the Mail Handlers in

APWU arbitrations will be decided by arbitration and

will never reach the courts since a binding national arbi-

tration award has now been issued requiring tripartite

arbitration under the collective bargaining agreement to

which the APWU is signatory."' United States Postal

Service and Nat’l Ass’n of Letter Carriers, USPS Case

No. H4N-4J-C 18504 (1989) (Britton, Arb.). The APWU

intervened and participated in that arbitration proceed-

ing and therefore should be bound by that arbitration

award. Since the APWU is bound by the Britton award,

it should be barred from objecting to the Mail Handlers’

intervention in future arbitrations over jurisdictional dis-

putes arising under the APWU’s collective bargaining

agreement.

Although no national postal arbitrator has yet specifi-

cally held that the APWU is bound by the Britton award,

11Under the Postal Service collective bargaining agreements,

there are binding national arbitration awards and non-binding

regional arbitration awards. The arbitration award in this case

was a non-binding regional award. By no means are the regional

arbitrators in agreement that non-signatory unions are not per-

mitted to intervene in arbitrations over jurisdictional disputes. The

regional arbitrators are more or less equally divided on this issue.

10

there exists a high probability that such an award will

issue—unless the APWU concedes the issue—and there

will be no need for the courts to further address this is-

sue with regards to the parties herein.”

3. This case arises out of the unique circumstances of

Postal Service collective bargaining and thus does not

present an appropriate vehicle for establishing broad ap-

plicable legal principles regarding tripartite arbitration

of union jurisdictional disputes. Both the Mail Handlers

and the APWU have practically identical collective bar-

gaining agreements with the Postal Service. Pet. App.

2a. Both agreements contain essentially identical arbi-

tration provisions. ER. 119. All three parties are con-

tractually bound by identical substantive rules—R.I.-399

—for the determination of work assignments in the Pos-

tal Service. Pet. App. 3a. Thus, this case is not typical

of jurisdictional dispute cases where the unions are

likely to have negotiated very different agreements with

inconsistent or even conflicting jurisdictional standards.

In addition, the Mail Handlers have agreed to partici-

pate in arbitration proceedings initiated by the APWU.

Therefore, there is no dispute among the unions as to

procedures that are to apply to the arbitration or as to

how the arbitrator is to be chosen. This is not necessarily

true in the typical jurisdictional dispute case where the

parties may have completely different procedures and

methods for arbitrating jurisdictional disputes.

Finally, this lawsuit, itself, is brought under Section

1208(b) of the Postal Reorganization Act, 39 U.S.C.

§ 1208(b) (hereinafter cited as “Section 1208”) and not

under Section 301 which applies only to private section

labor relations. The two statutes may be similarly

worded, but they arise out of different acts of Congress

12JIn addition, the dispute over tripartite arbitration could be

resolved in the upcoming negotiations scheduled to begimin a few

months.

11

and apply to differnt types of employers, i.e. federal sec-

tor and private sector. Although similar legal principles

are involved, the result may not always be the same un-

der the two different statutes."

Ill. THE DECISION BELOW WAS CORRECTLY

DECIDED.

1. The APWU’s argument*#hat the Court of Appeals’

decision undermines the principle of the voluntariness of

labor contracts and, contrary to forty years of this

Court’s precedents, reinstates the federal courts as the

ultimate authority over labor relations (Pet. 6-22)

grossly overstates the facts of this case. The truth is

that any infringement upon the voluntariness of contract

by the district court’s order compelling tripartite arbi-

tration is minimal, at most.

The APWU voluntarily created and invoked the con-

tractual arbitration procedure that led to this lawsuit

and has already appeared before the arbitrator selected

by the APWU and the Postal Service to hear disputes,

including jurisdictional disputes such as the one involved

in this case. Pet. App. 3a. The arbitration rules provided

for in the APWU-Postal Service collective bargaining

agreement will apply at the arbitration hearing. Pet.

App. 7a. The identical substantive rules for determina-

tion dispute—R.I. 399—are incorporated into both the

APWU and the Mail Handlers’ collective bargaining

agreements with the Postal Service. Pet. App. 3a. All

that LIUNA and the Postal Service seek is an order per-

mitting LIUNA to intervene in an APWI -initiated ar-

bitration.'* Thus, the APWU cannot be neard to com-

13 See discussion, infra at pp. 15-16.

144If this case involved a federal court proceeding rather than

an arbitration proceeding, there is no doubt thet the Mail Handlers

would be permitted to intervene, if not required to do so. See

Fed.R.Civ.P. 19(a) (compulsory jcinder of necessary party), 20(a)

(permissive joinder), 24(a)(2) (intervention of right), 24(b)(2)

12

plain that it has been hailed before an alien forum which

it neither contemplated nor bargained for.

As the Court of Appeals stated, the relief sought in

this ease is, in effect, the consolidation of two consensual

bipartite arbitration proceedings over the same dispute

into a single tripartite proceeding. Pet. App. 6a. It is

true that LIUNA has not formally initiated a grievance

over this jurisdictional dispute since it has not yet been

aggrieved because the work was initially assigned to its

embers. However, the fact that it filed both a cross-

Jaim and counterclaim requesting tripartite arbitration

is evidence enough that it desires to arbitrate these ju-

risdictional disputes. Mere procedural technicalities

should not stand in the way of effectuating federal labor

policy.

2. The APWU’s argument which narrowly focuses al-

mos‘ exclusively on the federal labor policy favoring the

voluntariness of collective bargaining agreements, not

only overlooks other federal labor policies such as that of

encouraging the orderly and rapid resolution of labor

disputes,’® but it ignores the federal courts’ broad powers

under Section 301—and by implication under Section

1208 '*—to fashion a federal common law of collective

bargaining agreements to effectuate—and reconcile—

these various labor policies.

Section 301 grants authority to the federal courts to

enforce collective bargaining agreements. This Court long

(permissive intervention) and 22(1) (interpleader). See also Win-

dow Glass Cutters League v. American St. Gobain Corp., 428 F.2d

353, discussed supra at p. 6.

15 The Supreme Court first recognized this policy in the seminal

Steelworkers Trilogy: United Steelworkers v. Warrior & Gulf

Navigation Co., 363 U.S. 574; United Steelworkers v. American

Manufacturing Co., 363 U.S. 564 (1960); United Steelworkers v.

Enterprise Wheel and Car Corp., 363 U.S. 593 (1960).

16 See fn. 5 supra.

a ee F

13 i

ago recognized that Section 301 is not simply procedural,

but grants to the federal courts broad authority to fash-

ion appropriate relief that effectuates federal labor pol-

icy.

This Court first defined this judicial authority in Tezx-

tile Workers Union v. Lincoln Mills, 358 U.S. 448 (1957).

The Court held that “the substantive law to apply in

suits under § 301(a) is federal law, which the courts

must fashion from the policy of our national labor laws.”

353 U.S. at 456. Most important, Lincoln Mills set guide-

lines for judicial development of the new common law of

collective bargaining agreements. The Court noted that

although the Labor Management Relations Act expressly

provides some substantive law,

Other problems will lie in the penumbra of express

statutory mandates. Some will lack express statu-

tory sanction but will be solved by looking at the

policy of the legislation and fashioning a remedy

that will effectuate that policy. The range of judicial

inventiveness will be determined by the nature of

the problem.

Id. at 457.

Given this broad mandate, this Court has carved out

exceptions to the usually consensual nature of collective

bargaining agreements where those exceptions are neces-

sary to further the federal labor policy encouraging the

resolution of labor disputes quickly and finally through

private arbitration processes.

For example, in Int’! Bh’d of Teamsters, Local 174 v.

Lucas Flour Co., 369 U.S. 95 (1962), this Court held that

where a collective bargaining agreement contains a clause

providing for the arbitration of grievances, the courts

may imply and enforce against a union an obligation to

refrain from striking during the term of the agreement

14

—even though the union has not agreed to a no-strike

clause.*’

Likewise, in John Wiley & Sons, Inc. v. Livingston,

376 U.S. 543, a “successor” employer was required to ar-

bitrate a dispute although it had never signed a collective

bargaining agreement with the union. The Court specifi-

cally held that a collective bargaining agreement is not

“the simple product of a consensual relationship” and

that “the impressive policy considerations favoring arbi-

tration are not wholly overborne by the fact that [the

successor employer] did not sign the contract being con-

strued.” Jd. at 150. In these decisions, as in CBS and

its progeny, the courts have interceded in order to aid

the private arbitration process.

The APWU’s sole reliance on the principle that labor

agreements must be voluntary begs the point. The issue

is not whether there is a federal labor policy that collec-

tive bargaining agreements must be voluntary, but how

those agreements should be interpreted and applied in

the context of all federal labor policies. This Court has

repeatedly recognized that a collective bargaining agree-

ment is more than a simple contract. Transportation-

Communication Employees, 385 U.S. at 160-61; John

Wiley & Sons v. Livingston, 376 U.S. at 150; United

Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S.

at 578-79. Thus, the Court has read and applied collec-

tive bargaining agreements not simply by their literal

terms but in a manner that effectuates federal labor

policy. Transportation-Communication Employees, 385

U.S. at 161-62; John Wiley & Sons, Inc. v. Livingston,

376 U.S. at 150; cf. Int’l Bh’d of Teamsters, Local 174

v. Lucas Flour Co., 369 U.S. at 104-06.

17 The Supreme Court has also held that injunctive relief is avail-

able against such a strike despite the Norris-LaGuardia Act, 29

U.S.C. §§ 101 et seq., which prohibits injunctions in labor disputes.

Boys Markets, Inc. v. Retail Clerks, Local 770, 398 U.S. 235 (1970).

The Court reasoned “the Norris-LaGuardia policy of non-interven-

tion should yield to the overall interest in the successful implementa-

tion of the arbitration process.” Jd. at 252-53.

oe

15

Those federal courts which have ordered tripartite ar-

bitration of jurisdictional disputes have relied upon their

broad powers under Section 301, finding that tripartite

arbitration “is in line with the overall national policy of

furthering industrial peace by resort to agreed-upon ar-

bitration procedures.” CBS, 414 F.2d at 1328. The Court

of Appeals below found that tripartite arbitration in this

case was “practicable, economical, convenient and fair”

and avoids duplication of effort and the possibility of

conflicting awards. Pet. App. 8a. The APWU has not

even attempted to argue why a process of multiple bi-

partite arbitration proceedings would effectuate overall

federal labor policy or would be reasonable, efficient and

fair for all parties concerned.

3. The APWU’s argument also ignores the statute sued

upon—Section 1208. There is no dispute that Section

1208 is the postal analog of Section 301,'* but it does not

necessarily follow that there are not different policy con-

siderations under the two statutes.

Under Section 301, the courts are to apply “a federal

common law” which the courts must “fashion from the

policy of our national labor laws.” Textile Workers

Union v. Lincoln Mills, 353 U.S. at 456. In fashioning

that federal common law under Section 1208, the courts

should look not only to the policies expressed in the La-

bor Management Relations Act, 29 U.S.C. §§ 141 et seq.,

but to the specific postal labor policies expressed in the

Postal Reorganization Act of 1971, 39 U.S.C. §$ 101

et seq.’®

18 See fn. 5, supra.

1° The Postal Reorganization Act gives postal employees the right

to engage in collective bargaining regarding wages, hours and con-

ditions of employment and incorporates certain, but not all, provi-

sions of the Labor Management Relations Act. See 39 U.S.C. § 1209.

In addition, the Postal Reorganization Act contains certain labor

provisions which are different than those contained in the Labor

Management Relations Act. See, e.g., 39 U.S.C. $§ 1205, 1206 & 1207.

16

Unlike the Labor Management Relations Act, the Pos-

tal Reorganization Act requires mandatory fact finding

and arbitration where the parties are unable to reach

agreement on a collective bargaining agreement. 39

U.S.C. § 1207. Thus, the Postal Reorganization Act,

even more so than the Labor Management Relations Act,

expresses a strong policy favoring arbitration of collec-

tive bargaining disputes and, in fact, mandates that the

parties participate in mediation and arbitration when an

agreement is not reached even though the parties have

not voluntarily agreed to do so.”

4. Finally, the fallacy of the APWU’s argument is

demonstrated by its failure to discuss what is to happen

under its theory of the law if conflicting bipartite arbi-

tration awards are issued. In the D.C. Circuit case,”

the APWU suggested that conflicting arbitration awards

could be submitted to the district court which would

2 Correspondingly, postal workers are prohibited from striking

18 U.S.C. § 1918 incorporated into the Postal Reorganization Act

by 39 U.S.C. § 410(b) (2). 4

21The APWU argues that federal labor policy is hostile to che

resolution of jurisdictional disputes through compulsory tripartite

arbitration, as is apparent from the legislative history of Section

10(k) of the Labor Management Relations Act, 29 U.S.C. § 160(k).

Pet. 13 n.9. Hewever, the administrative procedures of Section

10(k) for resolving jurisdictional disputes can be activated only

when a union violates Section 8(b)(4)(D), 29 U.S.C. § 158(b)(4)(D),

which prohibits unions from using strikes, boycotts, threats or

coercion to force or require an employer to assign particular work

to the members of a particular union. The purpose of Section

&(b)(4)(D) and Section 10(k) is to stop jurisdictional strikes and

the economic and social disruption that results from such strikes.

See, NLRB v. Radio and Television Broadcast Engineers Union, 364

U.S. 573, 580 (1961). However, postal employees are prohibited

from striking. 18 U.S.C. § 1918. Therefore, Sections 8(b)(4)(D)

and 10(k) do not, in effect, apply to Postal Service labor relations,

and their legislative history should have no bearing upon whether

courts should order tripartite arbitration under Section 1208.

22 Nationai Post Office Mailhandlers v. American Postal Workers

Union AFL-CIO, Nos. 89-5272 & 89-5273, D.C. Cir. (July 3, 1990).

17

choose which one to enforce. This approach not only

favors a wasteful and inefficient method of resolving la-

bor disputes which directly contradicts the federal labor

policy favoring their prompt resolution by private arbi-

tration, but it is flatly contrary to this Court’s repeated

admonitions that the federal courts are not to delve into

issues of contract interpretation. United Paperworkers

Int'l Union v. Misco, Inc., 484 U.S. 29, 36 (1987) ; United

Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S.

at 596.

A second alternative would be for the court to order

an additional tripartite arbitration proceeding. But this

approach is not only inefficient and wasteful, it is con-

trary to the APWU’s argument that the courts are with-

out authority to order tripartite arbitration absent an

express agreement to submit disputes to tripartite arbi-

tration.

This leaves one final alternative. The courts could sim-

ply enforce both arbitration awards against the employer.

See generally, Louisiana-Pacific Corp. v. Int'l Bh’d of

Electrical Workers, Local 2294, 600 F.2d 219 (9th Cir.

1979) (enfercing conflicting arbitration awards where

the employer sought judicial relief after both arbitration

awards had been rendered). Thus, the employer would

be required to pay two employees to perfurm one job for

as long as the job exists.** Such a result is manifestly

unjust, particularly under the facts of this case. Here,

the Postal Service has sought judicial relief at the earli-

est possible time,** and all three parties have already

agreed to a single set of substantive standards governing

work assignments in the Postal Service.

3 In Louisiana-Pacific Corp. v. Int'l Bh'd of Electrical Workers,

Local 2294, 600 F.2d at 220, the jobs in dispute were of limited

duration, and thus there was not such a hardship on the employer

as there would be when the dispute is over permaneut jobs.

*4* The court below limited its Louisiana-Pacific decision to the

situation where the employer sought relief after both arbitration

awards had been rendered. Pet. App. 8a.

18

In the final analysis, this Court has broad authority

under Section 301—and by implication under Section

1208—to formulate a common law of collective bargain-

ing agreements which effectuates federal labor policy.

Textile Workers v. Lincoln Mills, 353 U.S. at 456-57.

Although tripartite arbitration may, in some minimal

way, infringe upon the absolute voluntariness of the col-

lective bargaining agreement, it is the only reasonable

way to effectuate the federal labor policy favoring the

prompt resolution of labor disputes by private arbitra-

tion. As the Court of Appeals below found, tripartite

arbitration is the only “practical, economic, convenient,

and fair” method of resolving these disputes while avoid-

ing a duplication of effort and the possibility of conflict-

ing arbitration awards. Pet. App. 8a; accord. CBS, 414

F.2d at 329. Thus, it is not surprising that every court

that has addressed this issue has endorsed the concept of

tripartite arbitration. See discussion supra pp. 3-7.

CONCLUSION

For the reason stated herein, the respondent National

Postal Mail Handlers Union, a division of the Laborers’

International Union of North America, AFL-CIO, hereby

prays that the American Postal Worker Union’s petition

for a writ of certiorari to the United States Court of

Appeals for the Ninth Circuit to review the decision and

judgment in United States Postal Service v. American

Postal Workers Union, 893 F.2d 1117 (9th Cir. 1990),

be denied.

Respectfully submitted,

ROBERT CONNERTON

(Counsel of Record)

ORRIN BAIRD

CONNERTON, RAY & SIMON

1920 L Street, N.W.

Fourth Floor

Washington, D.C. 20006

(202) 466-6790

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