# Cross Petittion — Kozera v. Westchester-Fairfield Chapter of National Electrical Contractors Ass'n

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Cross Petittion
- **Published:** January 1, 1991
- **Citation:** 498 U.S. 1084

## Text

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FILED
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—sK F
IN THE

Supreme Court of the United States

OcToBER TERM, 1990

LOCAL UNION NO. 501 OF
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,

Petitioner,
VS.
WESTCHESTER-FAIRFIELD CHAPTER OF
NATIONAL ELECTRICAL CONTRACTORS
ASSOCIATION, INC. and
TED KOZERA, MIKE HANLEY, CHRIS KULERS,
MICHAEL CINELLI, FRANK HONAN and

JAMES STEMMERMAN,
Respondents.

ON CROSS-PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

CROSS-PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

RALPH P. Katz

Counsel on Record

Attorney for Petitioner
Local Union No. 501 of
International Brotherhood of
Electrical Workers, AFL-CIO

200 East Post Road

White Plains, New York 10601]

(914) 682-8900

QUESTIONS PRESENTED

1. Do all the members of an
unincorporated association have the
capacity to sue their own association
for compensatory damages on the basis of
an action brought on their behalf by six
members, and does such an attempt
produce a case or controversy, when:

(a) all the assets of their
association consist of their own
contributions and the investment
income thereon;

(b) the unincorporated
association is a local labor union
which reposes ultimate power and
authority in its members who meet
once each month, who elect their
officers, who have a procedure for
removal of their officers from
office, and who have elected an

executive board to act for them on

EE nn EY Se See EE
ii

matters which arise between
membership meetings and cannot
await the next such meeting;

(c) no member has ever moved
at a membership meeting, or
elsewhere, to have the union
distribute money from the union
treasury to themselves, nor has any
member, including the plaintiff-
members, otherwise initiated, no
less exhausted, any internal
procedure to require the union so
to act;

(d) The alleged damage is the
result of unauthorized acts by two
elected officers contrary to the
basic policy of the union, contrary
to the specific directions of the
union's executive board expressed
between membership meetings, and

not foreseeable by the executive

iii

board; and

(e) Subsequent to the conduct
complained of, and with full
knowledge of that conduct, the
membership, in a contested
election, elected the same two
officers to continue in their
offices?

2. If the assent to a collective-
bargaining agreement was induced by the
duress of a third person, not a party to
the contract, is the collective-
bargaining agreement voidable by the
victim if the other party to the
contract knew of the duress prior to the
signing?

3. Assuming solely arguendo that
an unincorporated association labor
union may be liable in compensatory
damages to all of its members, is a

labor union, as an entity, liable for a

iv

breach of its duty of fair
representation based solely on the
unauthorized and unratified conduct of
two of its officers, which conduct is
contrary to the stated policy of the
union and to the exprfessed preference

of the union's executive board?

Parties to the Proceedings Below

The plaintiffs in the District
Court, Ted Kozera, Mike Hanley, Chris
Kulers, Michael Cinelli, Frank Honan and
James Stemmerman, sued individually and
on behalf of the class of all the
members of Local 501. They have
petitioned for a writ of certiorari.

Defendants were the Westchester-
Fairfield Chapter of National Electrical
Contractors Association, Inc.,
("Chapter") and Local Union No. 501 of
the International Brotherhood of
Electrical Workers, AFL-CIO, the cross-
petitioner here.

Chapter is a corporation organized
in the State of New York. Local 501 is
an unincorporated association and a
labor organization. It was sued both in
its own name and by its president and

treasurer, Donald Werle and Douglas

vi

Reid, respectively, who were sued in

their representative Capacities,

vii

TABLE OF CONTENTS

Page
Questions Presented i
Parties to the Proceedings Below Vv
Opinions Below 2
Jurisdiction 3
Statement of the Case 3
Reasons For Granting The Writ 14

I. To Determine A Novel,
Yet Fundamental,
Question Of Labor Law 14

II. To Establish Criteria
For Determining The
Proper Course Of
Judicial Intervention
Or Judicial Abstention
Especially In Cases
Where The Class
Represents A Majority
Of The Union Membership 23

III. To Give Guidance To The
Courts Concerning The
Legal Consequences Of
The Use Of Third Person
Duress By A Party
Negotiating A Collective
Bargaining Agreement 27

IV. To Explicate The Place
Of The Newly Minted

viii

Page
"Meaningful Standards"
Test In The Fabric
Of The Law 36

Conclusion 44

ix

TABLE OF AUTHORITIES

Cases

Aircraft Associates £ Mfg. Co., Inc.
v. United States, 357 F.2d 373 (Ct.
SE CABS, APSSd vvveevevesevsvsersysrr

American Federation of Labor v.
Reilly, 113 Colo. 90 (1944)........

American Federation of Musicians v.
Wittstein, 379 U.S. 171 (1964).....

American Society of Mechanical]
Engineers, Inc. v. Hydrolevel
Corm., 456 U.S. $56 (1982).........

Atk i Sinclair Refining Co.,
SIO U.S. 238 (A9GZ) wv evvvevevveees

Carbon Fuel Co, v. Unit .d Mine
Workers of America, 444 U.S. 212
LEM VOPRGHGRERSESEGCER SE DES SESE EEeeeer

Charles Dowd Box Co., Inc, v.
Courtney, 368 U.S. 502 (1962)......

Citibank v.. Graphic Scanning Corp, j ’
459 F.Supp. 337 (S.D.N.Y. 1978)....

Complete Auto Transit, Inc. v. Reis,
eee lS eee ree eee

Ford Motor Company v. Huffman, 345
Dis Bw TRUE eerie secseesecussece

Page

35

16

23

36

14

17

29,30

14,39
4)

18

Frenza v. Sheet Metal Workers, 567

F. Supp. 580 (E.D. Mich. 1983).....

Grimshaw Co, v,. Neil C, Withrow Co, ’

248 F.2d 896 (8th Cir. 1957).......

Gurton v, Arons, 339 F.2d 371 (2d

CAE. APGRE) cence cevvevssseveceseosess

Humphrey v. Moore, 375 U.S. 335

LEDGE) a ccc eee acca ees eeseseceeces

International Brotherhood of
Boil 5 <) Build

Blacksmiths, Forgers and Helpers v.
Hardeman, 401 U.S. 233 (1971), reh.
denied 402 U.S. 967 (1971).........

Jamestown Farmers Elevator, Inc, v.
General Mills, Inc., 552 F.2d 1285
(8th Cir. 1977), ret.denied 552

FP .2MG 1955. ccc wcccccsscccescvccccs

Local 174, Teamsters, Chauffeurs,
Warehousemen & Helpers of America
v._Lucas Flour Co,, 369 U.S. 95

. 30) ee rr a a

Page

31

24

24

18

24

17

xi

Cases Page

Claiborne Hardware Co,, 458 U.S.
Se TCE E ee cede wk a wbe sees eonees 38-39

Navarro v, Gannon, 385 F.2d 512 (2d
a ee wwe 24

Commerce, 360 F.2d 103 (2d Cir.
1960), cert, denied 385 U.S. 931
eh een eat as a ehhh oe ee eae ss 22

R T ) I L uni
429, 133 LRRM 2085 (E.D. Pa. 1989). 21

Rosen v. Allegheny Corporation, 133
FP. Supp.836 (8.D.N.¥. 1955) ...ccoce 22

Sako v. Teamsters, Local 705, 125

Fee ys Oe FF ee ey) 21
Steele v,. Louisville N.R,. Co,, 323

Fee ee ee eee 18
“1 ‘le Wor) Un; 2

Lincoln Mills of Alabama, 353 U.S.

sy ae ee ee 16

Trail _v,. International Brotherhood
of Teamsters, 542 F.2d 961 (6th
ee Ee a hah on 0s oo ee ad 20

xii
Cases Page
Tunstall _v. Brotherhood of
Locomotive Firemen, 323 U.S. 210
Ee ee er 18

United Steelworkers of America v.
R.H. Boulingy, Inc,., 382 U.S. 145

Ce ea ae eS eae baw we 14
Vaca v. Sipes, 386 U.S. 171 (1967) .. 18
Warehouse Union, Local 860 v. NLRB,

652 F.2d 1022 (D.C. Cir. 1981)..... 21

{
Warner v,. McLean Trucking Co,, 627

F. Supp. 203 (S.D. Ohio 1985)...... 21
Weinraub v. Int’] Banknote Co,, 422

FP. Supp. 856 (S.D.N.¥. 1976)....... 29,31
Williams v. International

Typographical Union, 423 F.2d 1295
(10th Cir. 1970), cert. denied 400
Pe errr eee eee 24

Statutes

Labor-Management Relations Act,
Section 301, 61 Stat. 156 (1947),
SP UBC. BOGCIOR 188... ccccccvccess 16

Labor-Management Reporting and
Disclosure Act, Sections 2, 102,
304, 402, 73 Stat. 519, 523, 531,
Bee SOOee bie cake neh cee see baeanes

xiii

Es

eee. te ke 6 eee ee ko

EEE ee eee

SST TCT Tee

Consolidated Laws of New York,
General Associations Law, Section

BUMP PEWS SHEER Rese ee cersccrcnccece

Rules

Federal Rules of Civil Procedure

ee etc es ee cece ee

ee ta tec ae eee

Other Authorities

7 Corpus Juris Secundum,
Associations, Section 26 (1980

BG) occ c cere ccscceseseccssccccces

6 New York Jurisprudence 2d,

Associations and Clubs, Section 13
EN IES SS SPS EEE

Restatement (Second), Contracts,

et ce ees cece ces

22

18

18

19

19

29

Xiv

Section 175, comment (€)..--+-+++++:> 29-30

5

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1990

LOCAL UNION NO. 501 OF
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,

Petitioner,
Ve

WESTCHESTER-FAIRFIELD CHAPTER OF
NATIONAL ELECTRICAL CONTRACTORS
ASSOCIATION, INC. and TED KOZERA,
MIKE HANLEY, CHRIS KULERS,
MICHAEL CINELLI, FRANK HONAN and
JAMES STEMMERMAN,

Respondents.

CROSS-PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Cross-petitioner, Local Union No.
501 of the International Brotherhood of
Electrical Workers, AFL-CIO ("Local 501"
or “Union") respectfully prays that a
writ of certiorari issue to review the
judgment and opinion of the United
States Court of Appeals for the Second
Circuit entered in the above-entitled

proceeding on July 13, 1990.

Opinions Below

The opinion of the Court of Appeals
for the Second Circuit of July 13, 1990,
reported at 909 F.2d 48, was reprinted
in the Appendix to plaintiffs' petition
for a writ of certiorari at pp. sexta’
The District Court's order of February
17, 1988 which is unreported, was
reprinted at pp. 18a-20a; its opinion of
September 26, 1989, reported at 714 F.
Supp. 644, was reprinted at pp. 2la-49a;
and its final judgment of September 26,
1989, which is unreported, is reprinted
at pp. 50a-56a. The order of the Court
of Appeals of August 17, 1990, denying a
motion for rehearing, which is
unreported, was reprinted in the

Appendix at pp. 57a-58a.

1/ All Appendix page references are to
the Appendix to the petition for a writ
of certiorari in Supreme Court Index No.
90-770.

—SEEe ee

Jurisdiction

The judgment of the Court of
Appeals for the Second Circuit was
entered on July 13, 1990. A timely
petition for rehearing was denied on
August 17, 1990. The petition of the
plaintiffs below for a writ of
certiorari in No. 90-770 was served on
the cross-petitioners herein on November

15, 1990.

Statement of the Case

On June 4, 1987 Local 501
received a copy of two collective
bargaining agreements determined by an
arbitration panel (hereinafter the
Residential Agreements) together with an
arbitration award directing that they be
signed by Local 501. On June 22, 1987
Locel 501's executive board expressed a

preference for taking legal action to

vacate the arbitration award, did not

authorize the signing or transmittal of
the Residential Agreements to the IBEW,
thereafter expected the award to be
challenged in court, and had no
knowledge, nor reason to know, that its
expectations and expressed preference
were to be flouted.

Two officers of Local 501 did sign
the Residential Agreements and one
officer transmitted them to the IBEW.

In a sequence of facts to be
detailed below plaintiffs herein sued,
individually and as representatives of
all members of Local 501, to vacate the
arbitration award to nullify the
Residential Agreements ordered therein,
and for compensatory damages both
against the Chapter and, for breach of
its duty to provide fair representation,

against Local 501.

————

5

The arbitration award was
thereafter vacated, the District Court
finding and holding that the
determination and imposition of the
Residential Agreements was in excess of
the power of the arbitrators because the
language of the arbitration agreement
clearly disabled the Chapter from
unilaterally submitting interest issues
to arbitration. The Court of Appeals
affirmed the vacation of the award but,
reversing the District Court, held Local
501 bound to the Residential Agreements
because of the apparent authority of its
officers.

The Court of Appeals also reversed
the District Court's holding that the
conduct of the said two officers could
not be imputed to Local 501 for purposes
of holding that it, as an entity, had
breached its duty of fair representa-

tion. It remanded that part of the case

EP Serra raeereeree ane ane en

6

for factual amplification on the issues
of whether the actions of the two
officers violated Local 501l's duty of
fair representation and whether Local
501 had in place adequate procedures to
guard against the commission of
unauthorized acts.

Local 501 is an unincorporated
association. It is established by the
joint action of ten or more individuals.
It is dissolved when fewer than five
members in good standing object to
dissolution.

The sole income of Local 501
is from membership initiation fees,
membership dues and assessments,
contributions from working employees for
administrative purposes, and income from
the investment of the above.

Local Union No. 501 is organized to

be run by its members. The

—__aaaaaae

>

International Brotherhood of Electrical
Workers’ (IBEW) constitution places
great emphasis on Local union membership
meetings and provides that "any action
that the L. U. can take, and which
should be taken prior to the next
regular meeting of the L.U." may be
taken by Local 501's executive board.

Neither the plaintiffs nor any
other member of Local 501 made any
motion at any membership meeting or
elsewhere for Local 501 to levy against
its own treasury to pay compensatory
damages to themselves.

The plaintiffs did seek to
influence Local 501 action by way of a
petition. The petition was accompanied
by a letter asking that it “be read ..
and ... be duly recorded in the minutes
of the regular monthly meeting of L.U.

501 IBEW held this Thursday, July 16,

_———————EEo

1987." The petition and accompanying
letter were read to the membership at
the July 16, 1987 meeting and recorded
in the minutes.

The lead plaintiff in this case,
who was also the first signatory on the
petition and the suthor of the letter
which accompanied the petition, received
a written reply dated July 21, 1987 from
Local 501 to his letter and petition,
both dated July 16, 1987, advising him,
inter alia, that the matter raised by
his petition was open for possible
further action by Local 501.

Each plaintiff, and all the other
members of Local 501, were sent a letter
dated July 22, 1987 together with an
enclosed ballot card with instructions
to “make sure it is received back at the
Local 501 building by or before 5:00

P.M. On August 3, 1987 if you want it to

2

9

be considered."

Seven hundred and one ballots were
returned by the voting deadline and were
counted on the evening of August 3,
1987: 571 to vacate the arbitration
award (the action sought in the petition
sponsored by the plaintiffs), 105 not to
vacate the arbitration award, 19 blanks,
and 6 improperly marked.

The plaintiffs, however, did not
wait for the balloting period to run its
short course. The plaintiffs, having
knowledge that Local 501 was responding
to their petition, rushed into court.
The deadline for balloting was Monday,
August 3, 1987. The plaintiffs filed
their complaint in this action on the
previous Friday, July 3l, 1987.

Local 501 plead the failure to
exhaust internal union remedies.

Local 501 cross-claimed against the

Se ee

10

Chapter and, among other relief, sought
nullification of the arbitration
determined Residential Agreements

on the basis of duress.

The District Court held, on the
basis of law, that no duress was
chargeable to the Chapter, but it
granted to Local 501 on other grounds
all the relief sought by it including
nullification of the said Residential
Agreements. There was no part of the
judgment from which Local 501 could have
appealed, and the absence ot tedieles
findings on the subject of duress
rendered that ground unavailable as a
basis for affirmance of the District
Court’~ judgment by the Court of
Appeals. The subject, therefore, was
not raised on the Chapter's appeal to

the Court of Appeals. This Court

11

should, in the interests of justice and
because of the importance of the issue
in the development of labor law by
federal court decisions, correct the
errors of law and remand for the finding
of facts on the issue of duress and for
further legal determinations based
thereon.

In brief, Local 501 alleged illegal
conduct by the IBEW which had already
caused great damage to Local 501, the
threatening by the IBEW of further
drastic damage to it, and the use by the
IBEW “as an excuse for its action the
absence of an IBEW approved collective
bargaining agreement covering the
affected members of Local 501."

Local 501 further alleged "against
the foregoing background” that the
Chapter “refused to sign the 1986-1989

Inside Wiremen's Agreement ... unless

12

and until Local 501 would sign the said
[Residential Agreements]."

The District Court repeatedly
stated during the trial that Local 501
had proved that its officers and
executive board members had "an
objective basis for their fears about
the international."; and continued "So,
therefore, I will be constrained to find
on the proof I have that there was an
objective basis for your clients'
concern. You can't lose on that factual
issue ..." (i.e. IBEW duress).

The evidence further showed that
the Chapter president knew of the IBEW's
depredations of Local 501, and of Local
50l's fear of the IBEW, and of the use
by the IBEW of the absence of a signed,
IBEW approved, collective-bargaining
agreement as an excuse to reduce Local

501's jurisdiction. The evidence

a3

further showed that the Chapter
president had this knowledge prior to
the time he threatened to refuse to sign
the 1986-1989 Inside Wiremen's Agreement
unless Local 5011's officers signed the
Residential Agreements. The Chapter's
failure to sign the Inside Wiremen's
Agreement would have left Local 501 with
no IBEW approved collective bargaining
agreement.

The evidence shows that Local 50l1's
business manager signed the Residential
Agreements because of the Chapter's
threat to refuse to sign the Inside
Wiremen's Agreement and his fear of IBEW
action against Local 501 if that
agreement were not signed and submitted
to the IBEW.

Findings on the foregoing factual
matters were not inciuded in the

District Court's opinion because it

I Eee

14

held, as a matter of law, that no duress
was chargeable to the Chapter.
Reasons For Granting The Writ
I. To Determine A Novel, Yet
Fundamental, Question Of
Federal Labor Law
The relationship of the members of
a labor union to the union itself as a
separate entity is a recurring subject
which has required repeated visitation

2/
by this Court. The question

27 E.g., Atkinson v. Sinclair Refining
Co., 370 U.S. 238 (1962) (individual
members are not subject to levy to pay
damages for union wrongs even when they
participate in the wrongs.); United
Steelworkers of America v. R. H.
Bouligny, Inc., 382 U.S. 145 (1965)
(declined to treat union as if it were a
corporation for diversity purposes,
recognizing problems from such
treatment.) (382 U.S. at 152) The
geographic jurisdiction of Local 501,
for example, encompasses parts of the
States of New York and Connecticut.) ;
Complete Auto Transit, Inc. v. Reis, 451

U.S. 401 (1981) (individual members not
liable even when participating in an
unauthorized strike for which the union
has no liability).

/ 15

presented in this case is whether all
the members of Local 501 can sue
themselves (as Local 501 is an
unincorporated association) for monetary
damages and whether such an attempt
creates a case or controversy.

Otherwise put, the question is whether
Local 501 is an entity separate from all
of its members for the purpose of being
sued by them all for the payment to them
of their own meney from its treasury.
The District Court termed this "a novel
question” and dismissed the complaint.
(55a) The Court of Appeals reversed the
dismissal and remanded that part of the
plaintiffs' case against Local 501 (17a)
without even alluding to the existence
of this question. (The State of
Colorado's attempt to require the

incorporation of all labor unions doing

business within the state may have

EEE _

16

resolved this problem, but the
legislation was held to violate the

federal constitution in American

Federation of Labor v. Reilly, 113

Colo. 90 (1944)).

It is peculiarly the province of
this Court to address seminal matters of
labor law, such as a union member's
relationship to his union, on a case by
case basis, because it is an essential
part of our Nation’s labor law, arises
in the instant case within the context
of 29 U.S.C. section 185 (Labor-
Management Relations Act, section 301,
61 Stat. 156 (1947)), and involves the
subject of a union's court-law created
duty of fair representation.

This Court held in Textile Workers

Union of America v. Lincoln Mills of

Alabama, 353 U.S. 448 (1957) "that the

substantive law to apply in suits under

————————

17

section 30l(a) is federal law... " 353
U.S. at 456. The Court then wrote:

"The Labor-Management Relations Act
expressly furnishes some
substantive law. It points out
what the parties may or may not do
in certain situations. Other
problems will lie in the penumbra
of express statutory mandates.

Some will lack express statutory
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 political
inventiveness will be determined

by the nature of the problem."

353 U.S. at 457.
Although State courts have concurrent
jurisdiction of section 301 suits,

Charles Dowd Box Co., Inc. v. Courtney,

368 U.S. 502 (1962), State courts must
apply federal law and "incompatible
doctrines of local law must give way to
principles of federal labor law." Local

174, Teamsters, Chauffeurs, Warehousemen

& Helpers of America v. Lucas Flour Co.,

369 U.S. 95, 102 (1962).

eel

————————E eS

18

The need to use federal law applies
with special force to duty of fair
representation issues which arise in
connection with and out of section 301,
as does the instant case, as the concept
of a union's duty of fair representa-
tion is itself a creature of court
determined federal labor law. See

Steele v. Louisville N. R. Co.. 323 U.S.

192 (1944); Tunstall v. Brotherhood of

Locomotive Firemen, 323 U.S. 210 (1944);

Ford Motor Company v. Huffman, 345 U.S.

330 (1953); Humphrey v. Moore, 375 U.S.

335 (1964); and Vaca v. Sipes, 386 U.S.
171 (1967).

Moreover, the question of whether
every member of an unincorporated
association may bring an action for
money damages against his own

unincorporated association touches on

Rules 17(b) and 23.2 of the Federal

a

19

Rules of Civil Procedure.

Albeit the question is novel in the
sense that no prior decision has been
found which addresses it, the question
does not exist in a vacuum.

It is Hornbook law that each member
of Local 501 in good standing has an
undivided ownership interest as a joint
tenant in the property of his
unincorporated association, its treasury
and all other assets, 6 New York
Jurisprudence 2d on Associations and
Clubs, section 13, at 342 (1980 Ed.),
"and they, accordingly, have the right
to manage, control, and dispose of such
property or funds at their joint
pleasure." 7 Corpus Juris Secundum on
Associations, Section 26, at 70 (1980
Ed.).

The plaintiffs have not cited any

authority, and counsel for Local 501 has

Re Oe

20

found none, to support the proposition
that the entire membership of an
unincorporated association union can
successfully sue its union for
compensatory an

The acceptance of the plaintiffs'
proposition, and a subsequent legal
victory by them, could result in the
dissolution of the members' own Union
treasury through its distribution to
themselves, and could possibly result in
the dismantling of the Union itself
through the forced sale of real
property, if any, and chattels. The
members might then need to vote a

special assessment on themselves to

replenish their own Local 501 treasury.

3/ The cases cited by plaintiffs are:
Trail v. Int'l Bhd. of Teamsters, 542 F.
24 961, 964 (6th Cir. 1976) (**over-the-

road' truckdrivers who live in Michigan

SS

The acceptance of the plaintiffs'
proposition, and a subsequent legal
victory by them, could result in the
dissolution of the members’ own Union
treasury, through its distribution
to themselves, and could possibly
result in the dismantling of the
Union itself through the forced sale

of real property, if any, and chattels.

and who are employed by various Michigan
trucking companies, ..."); Frenza v.
Sheet Metal Workers, 567 F. Supp. 580,
S562 (E. D. Mich. 1983) ("Plaintiffs,
thirteen members of Local 80, ...") (no
class action); Warner v. McLean
Trucking Co., 627 F. Supp. 203, 205 (S.
D. Ohio 1985) ("members of Local 100,
International Brotherhood of Teamsters
(IBT), and who are employed by McLean
Trucking Company's breakbulk facility in
Cincinnati, Ohio."); Sako v. Teamsters
Local 705, 125 LRRM 2372, 2373 (N. D.
Ill. 1987) ("all members of the union
who are also employed by Niedert.");
Warehouse Union, Local 860

v. NURB, 652 F. 24 1022, 1023 (D.C. Cir.
T981) (a unit of thirteen clerical
workers employed by "“Emporium");
Renninger v. Teamsters, Local Union 429,
33 CREA 2085 (E.D. Pa. 1989) (five
individual plaintiffs; no class action)

|

22

The members might then need to vote a
special assessment on themselves to
replenish their own Local 501 treasury.
And, if Local 5011's assets were
insufficient to satisfy the compensatory
damages, members of Local 501, as
individuals, might then bring an action
against themselves, as individuals, to
satisfy the judgment. Consolidated
Laws of New York, General Associations
Law, Section 1601).

None of the federal labor or

procedural statutes determines the

4/7 The Federal courts ordinarily apply
the law of the State with respect to
such questions: Rosen v. Alleghen
Corporation, 133 F. Supp. 858, 867
(S.D.N.Y. 1955); see Petrol Shipping
Corporation v. Kingdom of Greece,
Ministry of Commerce, 360 F.2d 103,
107-108 (2d Cir. 1960), cert. denied

385 U.S. 931 (1966); but in this case it
would be necessary to decide whether the
federal law limiting a money judgment
against a labor organization to its own
assets as an entity (29 U.S.C. section
185 (b)) should be applied when the
judgment creditors are the entire
membership of the union.

’ i

question presented in this case. The
issue falls within the penumbra and
calls for judicial inventiveness. The
subject deserves this Court's attention.
II. To Establish Criteria For
Determining The Proper Course Of
Judicial Intervention Or Judicial
Abstention Especially In Cases Where
The Class Represents A Majority Of
The Union Membership
Labor unions are, among other
things, political entities and in regard
to this characteristic the law has
established an internal tension which
the courts must try to accomodate. The
law seeks to promote internal union
democracy and direct membership
political participation both by judicial

intervention (e.g. 29 U.S.C. sections

412, 464, and 482(b), American

Federation of Musicians v. Wittstein,

379 U.S. 171, 182-183 (1964) ("The
pervading premise of both these titles

is that there should be full and active

pineal

a hcariaicaisiaeaea imate

24

participation by the rank and file in

the affairs of the union."); Navarro Vv.

Gannon, 385 F. 2d 512 (2d Cir. 1967) )
and by judicial abstention

(International Brotherhood of

Boilermakers, Iron Ship Builders,

Blacksmiths, Forgers and Helpers v.

Hardeman, 401 U.S. 233 (1971), reh.

denied 402 U.S. 967 (1971) (recognizing
"the apparent congressional intent to
allow unions to govern their own
affairs, ..." 401 U.S. at 246); Howard

v. United Association of Journeymen and

Apprentices of the Plumbing and Pipe

Fitting Industry, Local 131, 560 F. 2d

17, 21 (lst Cir. 1977); Williams Vv.

International Typographical Union, 423

F.2d 1295 (10th Cir. 1970), cert. denied

400 U.S. 824 (1970); Gurton v. Arons 339
F.2d 371, 375 (2d Cir. 1964) ("General

Supervision of unions by the courts

25

would not contribute to the betterment
of unions or their members or to the
cause of labor-management relations.").

Thus, it does not appear that it
serves the purpose of the law for the
judiciary to become involved in what all
the members of Local 501, for that is
the definition of the class on whose
behalf the plaintiffs allege they are
Suing, can do for themselves directly.
No Local 501 member (including, of
course, no plaintiff) has sought to
accomplish directly by a vote of the
membership what plaintiffs ask of the
courts.

Whether all the members of Local
501 should seek relief from their own
Union treasury for themselves is
essentially a political question. It
can be decided by membership vote.

This case gives this Court the

26

opportunity to delineate criteria to
determine when court intervention is
called for by the federal law and when
the judiciary should abstain from
interference in internal union politics.
The exercise of such leadership by the
Court in this area would be of value
for, although the instance of all the
members of an unincorporated association
Suing their association to pay
themselves from their own treasury is
novel, the prospect of classes composed
of a majority of the members of a union
is not.

It is suggested that, absent
evidence that democratic procedures are
unavailable and attempts at membership
participation would be futile (there is
no such evidence in the instant case and
Local 501 plead the affirmative defense
of failure to exhaust internal union

remedies), the substitution of the

27

judicial forum for the political forum
is counterproductive to the expressed
Congressional intent to foster union
democracy.

The question of whether the
union members' money which is in the
Union treasury should be paid out to the
union members ought to be decided by
those members, not by a court.

III. To Give Guidance To The Courts
Concerning The Legal Consequences
Of The Use Of Third Person Duress By A
Party Negotiating A Collective
Bargaining Agreement
The Congress found "from recent
investigations in the labor and
management fields, that there have been
a number of instances of breach of
trust, corruption, disregard of the
rights of individual employees, and
other failures to observe high standards

of responsibility and ethical conduct

~oe " 29 U.S.C. section 401(b) (Labor-

a ee

28

Management Reporting and Disclosure Act,
as amended, section 2, 73 Stat. 519
(1959) )

In this case Local 5011's officer
Signed the Residential Agreements
because of duress from Local 50l's
affiliated international union, the
IBEW, not a party to the contracts.

The signing took place subsequent to the
time when the Chapter, the employer
party to the agreements, knew of the
duress and used it. Moreover, the
Residential Agreements themselves
resulted from a unilateral submission by
the Chapter to a panel of arbitrators in
violation of the agreement to arbitrate
which clearly required mutual submission
of interest arbitration issues.

It is respectfully submitted that
the interests of justice require the
correction of the errors below and a

statement by this Court of the law as it

29

applies to such duress in the collective

bargaining process.

The first of the two misstatements

of the law of duress in this case is:

"Duress is a basis to invalidate a
contract Only when the duress is
exercised by the other contracting
party, not some third party. See
Citibank v. Graphic Scanning Corp.,
459 F. Supp. 337 (S.D.N.Y. 1978);
Weinraub v. Int'l Banknote Co., 422
F. Supp 856 (S.D.N.Y. 1976) (47a-
48a)

The cited cases, discussed below,

do not support the proposition for which

they were adduced.

Restatement (Second), Contracts,

Section 175(2) reads:

"If a party's manifestation of
assent is induced by one who is not
a party to the transaction, the
contract is voidable by the victim
unless the other party to the
transaction in good faith and
without reason to know of the
duress either gives value or relies
materially on the transaction."

The Restatement, Supra, includes

the following exposition:

"Duress by a third person. If

ae re eR ee
30

a party's assent has been induced by the
duress of a third person, rather than
that of the other party to the contract,
the contract is nevertheless voidable by
the victim. There is, however, an
important exception if the other party
has, in good faith and without reason to
know of the duress, given value or
changed his position materially in
reliance on the transaction." (Comment
(e) to Section 175)

In this case the Chapter did know
of the IBEW's duress and, moreover, the
Chapter was not “in good faith" because
it unilaterally asked the arbitration
panel to impose collective-bargaining
agreements on Local 501 when such a
subject matter could be submitted for
arbitration under the arbitration
agreement “by mutual agreement only".

Tne District Court, in support of

its erroneous statement on duress by a

third party, cited Citibank, supra, and

Weinraub, supra.

Citibank did not rule on the issue

of duress. The determination was made

on the basis of collateral estoppel.

31

459 F. Supp. at 341 Not only did the
decision rely on collateral estoppel,
but the court could not have considered
or determined the issue of third party
duress because there was no third party
in that case. 459 F. Supp. at p. 341,

ftnt. 3. There is dictum in Citibank on

third party curess and in support of

that dictum the case of W. R. Grimshaw

Co. v. Neil C. Withrow Co., 248 F. 2d

896, 905 (8th Cir. 1957) is cited.

Grimshaw, however, followed the law

as written in section 175 (2) of the
Restatement (Second), Contracts and,
thus, is no support for the misstatement
of the law of duress in the instant
case.

Weinraub, like Citibank, does not

support the proposition for which the

District Court cited it. Weinraub, too,

followed the statement of the law as set

CO
32

: forth in section 175 of the Restatement

(Second), Contracts. In Weinraub the

defendants moved for summary judgment on
the ground that "any economic duress was
imposed by First Jersey National Bank,
not by defendants." 422 F. Supp. at
860. The court rejected that argument,
called it "somewhat simplistic" (422 F.
Supp. at 860), looked behind the third
party aspect, found the defendants "were
aware" of the duress imposed by a third
party on the plaintiffs (422 F. Supp at
860), and might share some
responsibility for creating the
situation in which the plaintiffs found
themselves (422 F. Supp. at 860); as
does the Chapter in this case by
unilaterally asking the arbitration
panel to impose the Residential
Agreements on Local 501.

The defendants’ motion for summary

judgment in Weinraub, based on the

a3

argument that they nad no liability
because the duress was imposed by a
third party, was denied.

The District Court further
misstated the law of duress in the
instant case when it wrote: "A
negotiating demand by an adverse party
cannot be a sufficient predicate for a
claim of duress, since that type of
pressure is at the heart of virtually
every contractual negotiation." (48a)

The District Court then cited: "Cf.

Weinraub, supra, 422 F. Supp. at 859;

Restatement (Second) of Contracts,
section 492 (wrongful threat is
required)." (48a)

Weinraub, contrary to that for

which it was cited, holds that a
negotiating demand by an adverse party
can be a sufficient predicate four a

claim of duress. 422 F. Supp. at 860

ana ane cnc ara nara nace naman etal emma ee
34

And the Restatement (Second),
Contracts also states the law
differently from the District Court's
citation of it. The District Court
cited "Restatement (Second) of
Contracts, section 492 (wrongful threat
is required." (48a) But there is no
section 492 in the Restatement (Second),
Contracts. The subject of former
Section 492, according to Table VI of
the Restatement (Second) of Contracts,
is now found in its sections 174 and
175. We have already examined Section
175. Section 174 is concerned only with
physical compulsion.

As is seen in Weinraub, supra, a

negotiating demand, even when the thing
demanded is not illegal, can be a
sufficient predicate for a claim of

duress. Weinraub is not a sport.

Jamestown Farmers Elevator, Inc. v.

35

General Mills, Inc., 552 F. 2d 1285 (8th

Cir. 1977) reh. denied 552 F. 2d 1295;

Aircraft Associates & Mfg. Co., Inc. v.

United States, 357 F. 2d 373 (Ct. of

Claims, 1966).

The Chapter acted in bad faith by
unilaterally submitting a dispute where
submission by “mutual agreement only"
was required. The Chapter then
leveraged itself on the IBEW's duress of
which it had knowledge.

Local 501 acknowledges that threats
are part of the bargaining process but,
as the courts hold, certain threats
including those not threatening illegal
acts, in certain circumstances, are
improper and constitute duress. Such
threats and such circumstances were
present in this case.

The District Court gravely erred on

the law of @uress. Because of the

36
\-

7
importance of the subject of duress in
collective bargaining negotiations and
in the interests of justice, we ask that
the writ of certiorari also issue on
this subject.
IV. To Explicate The Place Of The
Newly Minted "Meaningful Standards*
Test In The Fabric Of The Law

The dissent in American Society of

Mechanical Engineers, Inc., v.

Hydrolevel Corp., 456 U.S. 556 (1982)

(Hydrolevel) reads at 594:

"How far the Court's holding
extends is unclear. The Court
emphasized that ASME is a standard
setting organization. Yet it does
not limit its rationale to these
particular organizations. One must
be concerned whether the new
doctrine and the sweep of the
Court's language will be read as
exposing the array of nonprofit
associations - professional,
charitable, educational, and even
religious - to a new theory of
strict liability in treble
damages."

This case is an appropriate vehicle

to help clarify “[{h])ow far the Court's

37

holding extends". For the application
of the "meaningful standards" test in
this case by the Court of Appeals
appears to constitute, by extension, the
use of that test to reverse prior
decisions of this Court.

Tre Court of Appeals wrote: "Yet
we conclude that if the acts of the
president and the business manager are
found to violate the union's duty of
fair representation, such acts should be
attributable if it is determined that
the Local Union did not have in place
adequate procedures to guard against the
commission of such unauthorized acts."
(17a) The Court of Appeals further
wrote: " ... we vacate the district
court's finding that the Local Union may
not be held liable for any potential
breach of the duty of fair

representation ..." (17a)

38

Thus, the Court of Appeals,
depending on further facts, would hold
Local 501 liable based on the authorized
and unratified acts of two of its
officers. The case was remanded for

"further factual amplification" for "a
determination of whether the agents'
actions constituted a breach, and
whether such breach might have been
avoided through institution of proper
safeguards." (17a)

We ask this Court to grant
certiorari to review the determination
of the Court of Appeals on the Union's
potential liability because, if not
reviewed now, the reversal of the
District Court will become tune law of
the case and because that Court of
Appeals' determination, on the facts of

this case, fails to follow the decisions

of this Court. See National

Association for the Advancement of

39

Colored People v. Claiborne Hardware

Co., 458 U.S. 886, 930-931 (1982);

Complete Auto Transit v. Reis, 451 U.S.

401, 415-416 (1980); Carbon Fuel Co., v.

United Mine Workers of America, 444 U.S.

212, 216 (1979).

The holding that the conduct of
Local 5011's two officers "cannot be
properly imputed to the Union" (45a) was
made by the District Court on the basis
of findings of fact rooted in the record
and supported by references in the
opinion to the particular facts of this
case. (45a-46a) The Court of Appeals
reversed without disputing the District
Court's findings of fact, without basing
its reversal on any reference to any
particular facts which it found, but
writing only that "such acts should be
attributable if it is determined that

the Local Union did not have in place

40

adequate procedures to guard against the
commission of such unauthorized acts."

(17a), citing Hydrolevel, supra.

Local 501 does not object to or
oppose the application of the
"meaningful standards” test enunciated

in Hydrolevel, supra, but the Court of

Appeals by seeking to apply only that
test has jettisoned the bulk of the law
of agency relevant to this case. For,
by paying no attention to the facts of
this case, it has overlooked all the
applicable criteria and inquiries which
ordinarily precede the application of
the "meaningful standards" test. Were
the law to be followed as stated by this
Court, even if the facts to be
determined on remand were found
adversely to Local 501, the
determination of the District Court

should stand.

41

This Court has closely examined the
legislative history of the Taft-Hartley
Act with particular reference to union
liability and the subject of agency. In
reviewing that legislation this Court
has written:

"At the same time, Congress gave

careful attention to strikes during

the term of a collective-bargaining
agreement, but stopped short of
imposing liability upon a union for
strikes not authorized,
participated in, or ratified by
3t.”

Carbon Fuel Co. v. UMW, 444 U.S. at 216

"The legislative debates and the
process of legislative amendment
demonstrate that Congress
deliberately chose to allow a
damages remedy for breach of the
no-strike provision of a
collective-bargaining agreement
only against unions, not
individuals, and, as to unions,
only when they participated in or
authorized the strike." (emphasis
in original)

Complete Auto Transit v. Reis, 451 U.S.

at 415-416.

NAACP v. Claiborne Hardware, supra,

eee ee

’

42

is a post-Hydrolevel case and actually

cites ASME v. Hydrolevel at 458 U.S.

%

930. Yet, in NAACP v. Claiborne

Hardware the Court did not apply the

"meaningful standards" test because it
never had to reach it. The Court
reviewed the facts and found that the
statements attributed to an admitted
agent of the NAACP were "contrary to
NAACP policy" 458 U.S. at 930, that
there was no evidence that the NAACP had
ratified the violence complained of (458
U.S. at 930-931) or had specific
knowledge of any acts of violen€e or
threats (458 U.S. at 931), or had
authorized the boycott which had led to
threats and violence. (458 U.S. at 931)
It was on the basis of the above
criteria applied by this Court
(knowledge, authorization and

ratification), that the District Court

43

in the instant case held that the
conduct of two officers could not be
imputed to Local 501. The decision of
the Court of Appeals would substitute
the "meaningful standards" test in place
of the above common law criteria for
determining responsibility because of an
agency relationship.

The “meaningful standards' test is
a new legal development. This Court's
explication of its place in the fabric

of the law is needed.

44

CONCLUSION
For all the reasons above stated, a
writ of certiorari should issue to
review the judgment and opinion of the

Court of Appeals for the Second Circuit.

Respectfully submitted,

Attorney for Patitioner
Local Union No. 501 of
International
Brotherhood of
Electrical Workers,
AFL-CIO

200 East Post Road

White Plains, N.Y. 10601

(914) 682-8900

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3357%3A1. Public record. Not legal advice.