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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 498 U.S. 820

## Text

s spre ws Court U.S,
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| iuL 13 1980
No. 89-1953 | : CLERY
iim
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1677%3A2. Public record. Not legal advice.