Petition for Writ of Certiorari — General Electric Co. v. Local 783, Allied Industrial Workers

“> cn CL’ Y | “FILED |

MAY 2% 1973

“MICHAEL RODEK, JR..CLEPK

IN THE

SUPREME COURT OF THE UNITED STATES

“DFB“1 500

GENERAL ELECTRIC COMPANY - - Petitioner

LOCAL 783, ALLIED INDUSTRIAL WORKERS

OF AMERICA, AFL-CIO - - ~- Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MORTON J. HOLBROOK

RALPH W. WIBLE

100 St. Ann Street

Owensboro, Kentucky 42301

Counsel for Petitioner

May 7, 1973

WESTERFIELD-BONTE CO., INC., 619 W. KENTUCKY, LOUISVILLE, KY.

PAGE

STII ones nncvwenenscvecnvessaccdect: ili- v

ETI EE ne oe Ree ee nee 1

WI Ge ee tidus enenbessd ves sacsaicecisccn. 2

Questions Presented .............................. 2

Statutory Provisions Involved..................... 3

Statement of the Case............................. 3-10

Reasons for Granting the Writ..................... 10-24

_f

The Decision Below Conflicts With the Decisions

of Other Courts of Appeals as to Application of

the Parol Evidence Rule to Collective Bargaining

WI ais Soe 10-13

The Decision Below Conflicts in Principle With

Applicable Decisions of This Court Which Hold

That Collective Bargaining Agreements Are Not

Governed by Common Law Contract Rules..... 14

The Decision Below Raises Significant Questions

as to What Evidence May Be Considered in

Interpreting Collective Bargaining Agreements. 15-17

The Restrictive Approach to the Interpretation

of Contracts Adopted by the Court Below Has

No Application to Collective Bargaining Agree-

RUAN renee cipe la hie aces ysl 18-22

The Decision Below Raises Significant Questions

Concerning Abuse of Appellate Procedure By

Requiring Double Appellate Review and the

Opinion Reconsidering a Prior Decision on the

Merits Is in Conflict With Applicable Decisions

sont scocwnid bier... : Ere PRI eae 22-24

ES on eaae ee aie ae vive ve cesuadleeieen x. 25

ii

PAGE

jp ern err rrrrr reer TTT rir rrr rer errr 27-60

Order Denying Mandamus.............+.+.+0+85 27-28

Findings of Fact and Conclusions of Law by the

United States District Court for the Western

District of Kentucky............cccccccecees 29-46

Judgment of the United States District Court for

the Western District of Kentucky............. 47

Opinion of the United States Court of Appeals for

ee. ee rr rrr 48-58

Judgment of the United States Court of Appeals for

is Bi COUR. nav cas vcnvavccuesacncenunces 59

Order Denying Petition for Rehearing........... 60

La

AUTHORITIES CITED

Cases:

Angel v. Bullington, 330 U.S.183.............005. 24

Anson v. Hiram Walker & Sons, Inc., 222 F. 2d 100

(7th Cir. 1955) cert. denied 350 U. S. 840 (1955) ;

rehearing denied 248 F, 2d 380 (7th Cir. 1957).. = 11

Black v. Boyd, 248 F. 2d 156 (6th Cir. 1957)....... 23, 24

Block v. Commissioners, 99 U.S. 686 (1878)....... 22

Brownell v. Chase Nat. Bank, 352 U. 8S. 36, 39

SER a Seceeec. caeaua renter ete, 24

Burdick v. Harbor Spring Lumber Co., 167 Mich.

2 De A et ere 22-23

Columbia Broad. Sys. Inc. v. American Record. &

Broad. Ass’n., 414 F. 2d 1326 (2d Cir. 1969).... 14

Drake Bakeries v. Local 50, 370 U.S. 254 (1962)... 14

ExParte, Bakelite Corp., 279 U. S. 488 (1929)..... 22

Forrest Industries, Inc. v. Local U. No. 3-436 Int.

Woodworkers, 381 F. 2d 144 (9th Cir. 1967).... 18

General Teamsters, Chauffeurs & Helpers U. v.

Blue Cab Co., 353 F. 2d 687 (7th Cir, 1965).... 13

Hollywood Circle v. Dept. of Alcoholic Bev. Con.,

59 Cal. 2d 728, 13 Cal. Reptr. 104, 361 P. 2d 712

ee) I PRN MOM ROUTINE EUn rE SA aN ie 22

Hurst v. W. J. Lake & Co., 141 Or. 306, 16 P. 2d 627,

em et). | renner 20, 21, 22

Independent Petroleum Workers vy. American Oil

Co., 324 F. 2d 903 (7th Cir. 1963), aff'd Per

Curiam by eq div ct. 379 U. S. 130 (1964), re-

hearing denied 379 U.S. 985 (1965)........... i3

In re Previn, 204 F. 2d 417 (1st Cir. 1953)........ 23, 24

Internat’l Union of Electrical, Radio & Machine

Workers, AFL-CIO yv. General Electric Co., 332

F. 2d 485 (2d Cir. 1964), cert. denied 379 U. S.

SE MG org ch tea ners ae coer erent 11-12

Langer v. Iowa Beef Packers, Inc., 420 F. 2d 365

Ss Ss sa eo on a On ea eaen 20

Local U, No. 483 Int. Bro, of Boilermakers, ete. v.

Shell Oil Co., 369 F, 2d 526 (7th Cir. 1966)..... 13

Cases: (Cont’d) —

Louis v. Brown Township, 109 U.S. 162 (1883).... 22

Ludwig Honold Mfg. Co. v. Fletcher, 405 F. 2d 1123,

SI a oan boc heebes es one eeeckecn G4 os 18

N.L.R.B. v. Gulf Atlantic Warehouse Co., 291 F. 2d

a re rey ern 11, 12, 13

Nicoll v. Pittsvein Coal Co., 269 Fed. 968, 971 (2d

Se 10% 45 oso veo aia Besos 19

Overstreet vy. County of Butte, 20 Cal. Reptr. 681,

Be ee Oe Cs vk o cea cecadardctanewseds 22

Pacific Northwest Bell Tel. Co. v. Communications

Workers of A., 310 F. 2d 244 (9th Cir. 1962)... 13

T.-C.E. Union v. Union Pacific R. Co., 385 U. S. 157

SE 356) 5 d5< di mah Fos REAR ORs RRRN Eek ae 14

United Brick € C. Wkrs. Loc. 486 v. Lee Clay Pr.

Co., Inc., Ky., 488 S. W. 2d 331 (1972)......... 16

U.LS.v. US. District Court, 444 F. 2d 651 (6th Cir.

it), aff a G07 UB. SOF (ISTE)... «5.005005. 22

United Steelworkers of Amer. v. Warrior & Gulf

Navigation Co., 363 U. S. 574 (1960)..... 11, 12, 13, 15

Watson v. International Bro. of T., C., W., & H. of

America, 399 F, 2d 875 (Sth Cir. 1968)......... 16

Texts:

Annot., 21 A.L.R. 3d 206 (1968)..............000- 23

3 Corpin, Contracts, § 535 (1960)..............4. 21, 22

Mittenthat, Past Practices in the Administration of

Collective Bargaining Agreements, 59 Micn. L.

et: ee I ks cc ce se voneabueneeas 15-16, 17

ReEstTaTeMENT, Contracts, § 235, Comment e (1952). = 18

Summers, ludividual Rights and Arbitration, 37

ee ee | 17

[X WicMore, Evivence, § 2463 (3rd Ed, 1940). er 21, 22

3 Wituston, Contracts (Rev. Ep. WILLIston anpD

THompson 1936)

°° TEE eer r Oe hain 18

tS ee Een nets 18

Ce oo ee ee 19-20, 22

652 18-19

Statutes:

ee ee

Labor Management Relations Act of 1947 § 301(a),

29 U.S.C. § 185(a)

eS OP S90 886.66 O29 CP 6a SS 6 24S

LOE NS SAT

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

No.

GENERAL ELEcrric ComMPaAny, - - Petitioner,

U.

LocaL 783, ALLIED INDUSTRIAL WORKERS OF

America, AFL-CIO, -~— - - Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioner, General Electric Company, respectfully

prays that a Writ of Certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Sixth Circuit entered on January 5,

1973.

OPINION BELOW

The opinion of the Court of Appeals, 471 F. 2d 751,

and the Order denying rehearing (not reported), ap-

pear in the Appendix hereto at pages 48 through 60.

The Findings of Fact and Conclusions of Law ren-

dered by the District Court for the Western District

of Kentucky (not reported), appear in the Appendix

at pages 29 through 46.

JURISDICTION

The date of the judgment in the Court of Appeals

for the Sixth Circuit and the date of its entry was

January 5, 1973. <A timely petition for rehearing en

bane was denied on February 7, 1973, and this petition

for certiorari was filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Did the Court of Appeals err in holding that the

parol evidence rule rendered inadmissible evidence of

past practice and of agreements made during bargain-

ing sessions that the establishment of the Singapore

facility did not violate the collective bargaining agree-

ment?

2. Was it error to hold that establishment of the

Singapore facility violated the only plain meaning of

the collective bargaining agreement, thereby excluding

from consideration the existing circumstances, bargain-

ing history, past practice and usage as evidence of

another meaning?

3. Was the Sixth Circuit’s denial of a petition for

a writ of mandamus to compel trial before a jury a

holding on the merits and thus binding on that Court

when the action was appealed after trial?

STATUTORY PROVISIONS INVOLVED

§ 301(a), Labor Management Relations Act, 61 Stat.

156 (1947), Title 29, U.S.C.:

‘**§ 185. Suits by and against labor organizations—

Venue, amount and citizenship

“*(a) Suits for violation of contracts be-

tween an employer and a labor organization

representing employees in an industry affec-

ting commerce as defined in this chapter, or

between any such labor organizations, may

be brought in any district court of the

United States having jurisdiction of the

parties, without respect to the amount in

controversy or without regard to the citizen-

ship of the parties.”’

STATEMENT OF THE CASE

General Electric Company established a plant in

the Republic of Singapore for the manufacture of parts

of radio and television receiving tubes. The Union

brought this action under § 301 of the Labor Manage-

ment Relations Act claiming that the Singapore op-

eration breached the ‘‘farming out”’ clause of the col-

lective bargaining agreement between Local 783 and

teneral Electric relating to its Owensboro, Kentucky

operations.

General Electric manufactures radio and television

receiving tubes in Owensboro, Kentucky. In 1970 it

established the Singapore facility to make parts for

some of these tubes. The Company built and is op-

4

erating the Singapore plant in order to retain its mar-

ket for tubes by meeting offshore competition (which

has driven 7 U.S. receiving tube manufacturers out of

business) and to preserve jobs for its Owensboro em-

ployees. The Union contends that this was a violation

of Article XVI § 5 of the collective bargaining agrce-

ment, which provides:

‘There shall be no farming or letting out or trans-

fer of machinery or work for the purpose of cur-

tailing or reducing employment in the plant.’’

The contract excludes disputes under this clause

from arbitration,

The ‘‘farming out” clause has appeared in every

agreement between the parties since their first contract

in 1945. Shortly before the 1945 contract, General

Electric had bought the Owensboro works from Ken-

Rad Lamp Company. The immediately preceding con-

tract between Ken-Rad and the Union had a different

clause providing:

“4. The Company agrees that it will not farm out

any of its work to any other plant or plants for

the purpose of curtailing or reducing employment

in its plants covered by this contract.”

In the years since 1945, General Electric had moved

production from its Owensboro plants to its plants in

other areas, and from plants in other areas to its

Owensboro plants without a grievance ever having

been made that this violated the “farming out” clause.

ov

In the early months of 1970, the parties were en-

gaged in contract negotiations. At the bargaining ses-

sion of January 20, the Union representatives and

company representative, McQueeney, discussed the

meaning and application of the ‘‘farming out” clause

to moves in and out of Owensboro as developed during

25 years of practice in the following colloquy:

“C.

(McQueeney) Suppose a new business was think-

ing of coming in here and we told them of the good

work climate and people, and then told them that

if they were to move equipment in they should

know they could never move it out to another of

their locations. He’d ask how many other GE

locations have the problem and we’d say none.

He’d say goodbye.

U.

(Dugger) That gets away from farmout. Besides

that’s not farmout in GF.

C.

(MeQueeney) Can you see how unattractive we

could be to a new business? Our current language

says we can’t farm out for the purpose of curtail-

ing or reducing the workforce. Your proposal

seems to say that we couldn’t move the equipment

to Springfield.

U.

(Harrison) Even under our language you'd be

breaking the agreement when you sent stuff to

Springfield since it would reduce some work here,

if we meant farmout to include within GE moves.

We don’t mean that.

U.

6

(Arnold) There’s quite a difference between farm-

ing out and transferring work between locations.

We haven’t made a stink about that.

U.

(Warren) Look at your thick film move to Syra-

cuse. We didn’t complain about that either.

U.

(Erwin) We’re aware of the changing realities of

a business which says some things come in here

from other GE locations and go out to other GE

plants. What we want to do away with is farm-

ing work out to Faith Tool & Die, or a place like

‘*Knuckles”’ when we’ve got equipment and people

in here who can do the work, and we think cheaper

too. We do enough rework at EDC on farmed out

stuff to offset the cost of doing it here to begin

with, to specifications without rework.

(McQueeney) I’m just not aware of the fact that

this does, in fact, go on.

U.

(Erwin) Well, it does, and that’s what we don’t

like. We’ve never complained about transferring

stuff to other GE locations. We sent those base

staking machines to Tell City and they sent the

bases back here for processing for sometime before

the machines were finally returned here. We didn’t

ery about that, because that’s not farm-out.”’

On January 21, the company newspaper formally

announced to the employees that the Singapore opera-

tion would be started later that year.

The meaning of Article XVI § 5 was again dis-

cussed and agreed upon at the session of February 3.

eC.

(McQueeney) Let’s take up where we left off at

our last meeting. I believe it was on:

Article XVI—Section 5—Farming Out

It must be pretty evident after our last discussion

just how important our concern is for this lan-

guage. Facing the continuing decline of the core

business we want to be able to attract other busi-

nesses to take its place. There are two ways we

go about getting uew employment opportunities in

to Owensboro. First, we continually look for ways

to add new product innovations within the Tube

Department such as we did when such things as

DDO and Microwave Products were added. A sec-

ond effort we make is to search for new depart-

ments to move into Owensboro such as the one we

announced recently in the Headliner. Of course,

this contract and therefore this farmout language

would not affect a new product department such

as the one announced, but the very existence of this

clause does nothing to enhance the attractiveness

of the Owensboro location. Even decisions to add

to the Tube Department must involve review and

concern for the current farmout provision; that is

why I explored so thoroughly with you your in-

terpretation of the current farmout language.

First, let me say that we are not willing to revise

the current language as you propose; we are simply

unwilling to broaden the current spirit and intent

of this language. Second, personally IT am not

happy with even the current language but con-

sidering the arbitration rulings which give it defi-

nition’ and considering your interpretation that

1This clause has not been arbitrable since the 1966 agreement.

8

this language in no way, shape or form applies to

the transfer of work or equipment from Owensboro

to anyplace within the General Electric Company,

on that basis, I’m willing to keep the language we

have in the agreement. Have I correctly stated at

least that part of your interpretation of this lan-

guage correctly that is, that the language in no

way applies to the transfer of work or equipment

from Owensboro to any other location in the Gen-

eral Electric Company ?

U.

(Arnold) That’s right.

U. |

(Erwin) I agree.”’

The District Court admitted in evidence this settled

practice of 25 years and the quoted agreement of the

parties as to the meaning of the farmout elause. The

Court of Appeals held this reversible error.

It was against the background of the commitments

quoted above that the collective bargaining agreement

was executed on March 3.

Although the announcement was made on Jan-

uary 21 and the first shipment of equipment to Singa-

pore was on March 5, this action was not filed until

November 5, 1970.

The Complaint brought in the state court prayed

only for injunctive relief. General Electric removed

to the United States District Court for the Western

District of Kentucky, invoking that Court’s jurisdic-

tion under Section 301 of the Labor Management Re-

lations Act of 1947. The District Court, after a hear-

ing held on November 10, 1970, dissolved the state

9

court’s temporary restraining order and denied a

temporary injunction.

There was no further action until the District Court

on June 16, 1971, ordered that a pre-trial conference

be held on August 19. The pre-trial conference order

set the case down for trial before the Court on Sep-

tember 16. On September 8, Respondent filed a Motion

for Leave to Amend its Complaint to include (1) a

prayer for damages of over $4 million, and (2) a de-

mand for jury trial.

The District Court granted leave to amend on con-

dition that the action proceed to trial without a jury.

It also granted Respondent additional time to file a

brief on its claim of right to a jury and reset the trial

to November 10. After briefing, the Court again de-

clined to allow a jury trial.

On October 26, Local 783 brought an original man-

damus action in the Court of Appeals against the Dis-

trict Judge and General Electric to compel the Judge

to grant a jury trial. General Electric objected to the

mandamus petition, arguing to the merits that the Dis-

trict Court had not exceeded its discretion in placing

a condition on the granting of leave to amend. It also

argued that the extraordinary writ of mandamus was

not appropriate in this case. The Court of Appeals

denied mandamus in an opinion directed only to the

merits rather than to the inappropriateness of the

remedy. See page 27 of Appendix hereto.

Local 783 then sought a stay of the trial on the

grounds that it was preparing a petition for certiorari

to review the denial of mandamus. The stay was

Sheaeens.-

10

denied by the District Court, by the Court of Appeals

for the Sixth Circuit, and by Circuit Justice Potter

Stewart. Local 783 did not seek review by certiorari.

The case then went to trial. The District Court

held evidence of practice, usage and bargaining history

was admissible and found that the parties did not in-

tend the ‘‘farming out’’ clause to prohibit transfers to

other GE plants. It further found that General Elec-

tric did not establish the Singapore operation ‘‘for the

purpose of reducing employment,”’ but that the pur-

pose of establishing the plant was to preserve Owens-

boro jobs that would otherwise be lost to offshore

competition.

The Court of Appeals reversed the judgment

rendered by the District Court on the grounds that its

denial of mandamus did not decide the jury issue on

the merits, and that it was error to grant leave to

amend on the condition that the trial be by the Court.

It reversed on the additional grounds that the ‘‘farm-

ing out’’ clause had but one plain meaning, and that it

was error to admit evidence for the purpose of inter-

preting the collective bargaining agreement.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Conflicts With the Decisions of

Other Courts of Appeals as to Application of the Parol

Evidence Rule to Collective Bargaining Agreements.

This case involves conflicts between the Fifth and

Sixth Circuits as against the Seventh and Ninth Cir-

cuits involving an important phase of administration

of the national labor laws, i.e., whether parol evidence

11

may be used to construe collective bargaining agree-

ments.

This Court has held that a collective bargaining

agreement is ‘‘more than a contract; it is a generalized

code to cover a myriad of cases which the draftsman

cannot wholly anticipate.”” United Steelworkers of

America v. Warrior & Gulf Navigation Co., 363 U. 8.

574 at 578 (1960).

In holding that the parol evidence rule applies to

collective bargaining agreements to prohibit the admis-

sibility of the bargaining session statements, past prac-

tices and usages, the Sixth Circuit relied upon the

following decisions of other Courts of Appeals:

N.L.R.B. v. Gulf Atlantic Warehouse Co., 291 F. 2d

475 (5th Cir. 1961); Anson v. Hiram Walker & Sons,

Ine., 222 F. 2d 100 (7th Cir. 1955) cert. denied 350

U.S. 840 (1955), rehearing denied 248 F. 2d 380 (7th

Cir. 1957); International Union of Electrical, Radio

and Machine Workers, AFL-CIO vy. General Electric

Co., 332 F. 2d 485 (2nd Cir. 1964), cert. denied 379

U. S. 928 (1964).

Only the Fifth Circuit decision in N.L.R.B. v. Gulf

Atlantic Warehouse, supra, supports the Court below.

Anson v. Hiram Walker & Sons, Inc., supra (7th Cir.

1955), was decided before this Court distinguished col-

lective bargaining agreements from other contracts in

Umited Steelworkers of America v. Warrior & Gulf

Navigation Co., supra, and it is no longer the law even

in the Seventh Circuit. See cases cited at p. 13 below.

In the Second Circuit case, International Union of

Electrical, Radio and Machine Workers, AFL-CIO vy.

12

General Electric Co., supra, the Court did not hold that

the parol evidence rule applies to collective bargaining

agreements; it simply held that a court will not con-

sider bargaining history where it touches upon both the

questions of arbitrability and the merits of a dispute.

Resolution of such factual issues is for the arbitrator

rather than the court. This rule, designed to strengthen

the arbitration process, has no application where the

parties have excluded a dispute from arbitration as they

have here.

The Court below relied on Warrior & Gulf as hold-

ing that evidence of bargaining history was not to be

used in determining the meaning of an arbitration

clause, and the Court interpreted this to mean that

parol evidence is admissible only “when the contract is

in need of interpretation.’’? This was the same error

the Fifth Circuit had made in N.L. RB. v. Gulf Atlantic

Warehouse.

Both Circuits erred in finding that this Court had

applied the parol evidence rule in the Warrior & Gulf

case. Warrior & Gulf did not apply the parol evidence

rule. Instead, it announced a rule as to the weight of

evidence necessary to find an intent to exclude an issue

from arbitration. In order to further the federal

policy favoring arbitration, Warrior d& Gulf held that

‘¢doubts should be resolved in favor of arbitration’? and

‘‘only the most forceful evidence of a purpose to ex-

elude the claim from arbitration can prevail.’? This

rule for construction of arbitration clauses is entirely

different from those for other clauses of collective

bargaining contracts. The Warrior d& Gulf opinion

13

recognized that once a tribunal reaches the merits of

an issue, it is not bound by common law rules, by noting

that the words of a collective bargaining agreement

cannot be the ‘‘exclusive source of rights and duties”’,

and that the ‘common law of the shop’’ furnishes con-

text to the agreement. 363 U.S. at 579, 580.

Decisions of the Ninth and Seventh Circuits conflict

with the Sixth Circuit’s decision in this case and the

Fifth Cireuit’s in Gulf Atlantic Warehouse. In For-

rest Industries, Inc. v. Local U. No. 3-436, Int. Wood-

workers, 381 F, 2d 144 (9th Cir. 1967) evidence of past

practices was considered on the basis of this Court’s

view of the special nature of collective bargaining

agreements as expressed in Warrior & Gulf. Also, the

Ninth Cireuit’s earlier decision in Pacific Northwest

Bell Tel. Co. v. Communications Whrs. of A., 310 F. 2d

244 (9th Cir. 1962) and the Seventh Circuit decision of

Independent Petroleum Workers v. American Oil Co.,

324 F. 2d 903 (7th Cir. 1963), aff’d Per Curiam by

eq div ct. 379 U. S. 130 (1964), rehearing denied 379

U. S. 985 (1965); General Teamsters, Chauffeurs &:

Helpers U. v. Blue Cab Co., 353 F. 2d 687 (7th Cir.

1965) ; and Local U. No. 483 Int. Bro. of Boilermakers,

ete. v. Shell Oil Co., 369 F. 2d 526 (7th Cir. 1966) hold

that bargaining history, past practices and usage may

be considered in interpreting this special class of

agreements.

These conflicting decisions justify the grant of

certiorari to review the judgment of the Sixth Circuit.

14

2. The Decision Below Conflicts in Principle With Appli-

cable Decisions of This Court Which Hold That Collec-

tive Bargaining Agreements Are Not Governed By Com-

mon Law Contract Rules.

This Court has held that ‘‘[a] collective bargaining

agreement is not an ordinary contract for the purchase

of goods and services, nor is it governed by the same

old common-law concepts which control such private

contracts.’”’ 7.-C.E. Union v. Union Pacific R. Co.,

385 U. S. 157 at 160-161 (1966), rehearing denied 385

U. S. 1032. And the Second Circuit has followed this

rule that collective bargaining agreements are not to be

foreed into the molds of strict common-law contract

principles. Columbia Broad. Sys. Inc. v. American

Record. &: Broad. Ass’n., 414 F. 2d 1326 (2d Cir. 1969).

Further, this Court has specifically recognized that

past practices and usage are to be considered in con-

struing collective bargaining agreements. It con-

sidered such evidence in Drake Bakeries v. Local 50, 370

U. S. 254 at 259 (1962) and it reiterated this view in

T.-C.E. Union v. Union Pacifie R. Co., supra:

‘‘In order to interpret such an agreement it is

necessary to consider the scope of other related col-

lective bargaining agreements, as well as the prac-

tice, usage and custom pertaining to all such agree-

ments.”’ 385 U.S. at 161.

These conflicts with the decisions of this Court

justify the grant of certiorari in this case.

15

3, The Decision Below Raises Significant Questions as to

What Evidence May Be Considered in Interpreting Col-

lective Bargaining Agreements.

The federal policy to be considered in formulating

substantive law under § 301 is to promote industrial

peace through the collective bargaining agreement.

United Steelworkers vy. Warrior & Gulf Navigation

Co., 363 U. 8. 574, 578 (1960). While forcing parties

to ‘dot every i and cross every t”’ may be called for in

some contractual situations, it is inappropriate where

the alternative to failure to agree is the strike. Ap-

plication of the parol evidence rule to collective bargain-

ing agreements would cause both companies and unions

to demand such great detail while negotiating as to

make it likely that nether could agree to the other’s

demands. Parties to collective bargaining agreements

are loath to agree to change long-accepted language for

fear of consequences which they are unable to predict.

In either event, the federal policy of promoting indus-

trial peace would be frustrated.

Parties to collective bargaining agreements should

be permitted to show the meaning they have given to

the words by their common understandings, usa ges and

past practices. The use of words to express a com-

plicated understanding is a venture fraught with im-

perfection and risk in any situation and the likelihood

of imperfection is even greater in the drafting of eol-

lective bargaining agreements.

‘Issues are often settled by a general formula be-

cause the negotiators recognize they could not

possibly foresee or provide for the many con-

16

tingencies which are bound to occur during the

life of the agreement. Indeed, any attempt to

anticipate and dispose of problems before they

arise would, I suspect, create new areas of dis-

agreement and thus obstruct negotiations. Sooncr

or later the employer and the union must reach

agreement if they wish to avoid the economic waste

of a strike or lockout. Because of this pressure,

the parties often defer the resolution of their dif-

ferences—either by ignoring them or by writing a

provision which is so vague and uncertain as to

leave the underlying issue open.’’ Mittenthat,

Past Practices in the Administration of Collective

Bargaining Agreements, 59 Micu. L. Rev. 1017 at

1022-23 (1961).

Our Kentucky Court has affirmed this only recently :

“Actually, it is difficult in any case to say with

assurance that only one interpretation of a con-

tract provision is possible. In ordinary com-

mercial contracts, skilled lawyers have difficulty

in stating the terms in such precise language that

all ambiguity is eliminated.” United Brick & C.

Whrs., Loc. 486 v. Lee Clay Pr. Co., Inc., Ky., 488

S. W. 2d 331 at 335 (1972).

In the case at bar, proof was offered of practices of

25 years standing. In addition, the bargaining history

evidenced the Union’s agreement to the historie mean-

ing of the ‘farming out”? clause, and it also explicitly

confirmed and admitted the existence of the past prac-

tices. The Fifth Cireuit considered such evidence in

Watson v. International Bro. of T., C., W. & H. of

America, 399 F. 2d 875 (Sth Cir, 1968).

17

Past practices and usages are perhaps the most

valuable tools in arriving at the true intent and purpose

of collective bargaining agreements and should in fact

be considered a part of the agreement:

‘“*The collective agreement by which the individual

and the collective parties are governed is not

limited to the four corners of the written instru-

ment. It is the whole agreement, including the

industrial customs, established practices, under-

standings and precedents which infuse the con-

tractual words with life and meaning.’’ Summers,

Individual Rights and Arbitration, 37 N.Y.ULL.

Rev. 362, 396 (1962).

Past practice is of such significance that one writer

has suggested there should be a presumption that a

practice continues in force unless repudiated during

negotiations.

‘**Because the contract is executed in the context

of these understandings and practices, the nego-

tiators must be presumed to be fully aware of them

and to have relied upon them in striking their

bargain. Hence, if a particular practice is not

repudiated during negotiations, it may fairly he

said that the contract was entered into upon the

assumption that this practice would continue in

foree.’’ Mittenthat, Past Practices in the Ad-

ministration of Collective Bargaining Agreements,

supra, at p. 1034.

The decision of the Court below in applying the

parol evidence rule to force exactness in collective bar-

gaining agreements frustrates the national labor policy

of promoting industrial peace.

18

4. The Restrictive Approach to the Interpretation of Con-

tracts Adopted By the Court Below Has No Application

to Collective Bargaining Agreements.

Even under common-law contract rules, cireum-

stances existing at the time the contract was made may

be considered. ReEsTaTEMENT, Contracts, § 235, Com-

MENT ¢€ (1952). Circumstances and prior negotiations

must be considered in determining whether or not os-

tensibly clear language is ambiguous. Ludwig Honold

Mfg. Co. v. Fletcher, 405 F. 2d 1123, 1130 n 31 (3rd Cir.

1969).

The terms of an earlier writing are also such cir-

cumstances as must be considered. 3 WILLISTON, Con-

TRACTS § 628 p. 1804 (Rev. Ep. WILLIston anp THomp-

son 1936). Here, the last contract prior to the adoption

of the current language prohibited ‘‘farm out to any

plant or plants’. After General Electric bought the

Owensboro operation, the phrase ‘“‘to any other plant

or plants”’ was removed leaving a clause of obscurity as

compared to the earlier language. This circumstance

highlights the ambiguity of the present clause and calls

for other evidence to explain the meaning given it by

the parties.

The common law allows the admission in evidence

of usage even though it ‘‘may contradict or vary impli-

cations which otherwise would be drawn from the writ-

ten or oral expressions of the parties.’ 3 WiLuiston,

ConTRACTS, supra, § 648.2. The practice between the two

***This necessarily involves the proposition that evidence of

usage may be introduced to contradict implications of fact or law

(Footnote continued on following page)

19

parties is such a usage. 3 WILLISTON, ConTRACTS, supra,

§ 660. The present ‘‘farming out’’ clause is incom-

plete. It leaves an implication to be drawn as to

‘“‘where”’ the Company may not farm out, let out, or

transfer. Usage may be considered to contradict or

vary this implication, and to show that the parties in-

tended to prohibit only the sending of work to contrac-

tors outside of the General Electric Company. This

was the usage between the parties, and it was so ad-

mitted by the union representatives in the 1970 bargain-

ing sessions.

The implication drawn by the Sixth Circuit is not

only shown to be wrong by past practice and usage, but

it is cast in doubt when considered in light of the cir-

cumstance that establishment of the Singapore opera-

tion was announced over a month before the contract

was signed. It is hardly credible that the parties

would sign a contract forbidding the activity then

underway—the establishment of the Singapore plant.

The common law allows parties to give their own

special and different meaning to language of a contract.

“With Dean Wigmore (Evid. § 2465) we think

that there is no reason in the nature of things why

the individual parties to a transaction may not

employ words or whole phrases in a particular

sense irrespective of the ordinary sense.’’ Nicoll

v. Pittsvein Coal Co., 269 Fed. 968, 971 (2d Cir.,

1920).

**So it is often said also that usage is admissible to

explain what is doubtful but never to contradict

which in the absence of usage would have been drawn from the

writing, sinee otherwise, there would be no point in proving the

usage.’’ 3 Williston, Contracts, supra, § 652, p. 1882.

20

what is plain. If this statement means that usage

is not admitted to contradict a meaning apparently

plain if proof of the usage were excluded (and this

is what the statement seems naturally to mean),

it is inconsistent with many decisions and wrong

on principle.’”’ 3 WuiLiiston, Contracts, Supra,

§ 650, pp. 1875-1876.

Further the view that Courts can find in words but

‘‘one plain meaning”’ is one to be utilized with great

caution if at all. ‘‘[S]uch a rule is only a ‘vestigial

remain of a notion prevailing in ‘‘primitive law.’’’”’

Langer v. lowa Beef Packers, Inc., 420 F. 2d 365, 369

(8th Cir. 1970). The parties may have intended a

meaning quite different from that which appears most

obvious as is recognized in Hurst v. W. J. Lake & Co.,

141 Or. 306, 16 P. 2d 627, 89 A.LL.R. 1222 (1932) :

The flexibility of or multiplicity in the meaning

of words is the principle source of difficulty in the

interpretation of language. Words are the con-

duits by which thoughts are communicated, yet

scarcely any of them have such a fixed and single

meaning that they are incapable of denoting more

than one thought. In addition to the multiplicity

in meaning of words set forth in the dictionaries,

there are the meanings imparted to them by trade

customs, local uses, dialects, telegraphic codes, ete.

One meaning crowds a word full of significance,

while another almost empties the utterance of any

import. The various groups above indicated are

constantly amplifying our language; in fact, they

are developing what may be called languages of

21

their own. Thus one is justified in saying that the

language of the dictionaries is not the only lan-

guage spoken in America. . . .”’? 16 P. 2d at 629.

* * * * * * *

‘The defendant cites numerous cases in many of

which the courts held that, when a contract is ex-

pressed in language which is not ambiguous upon

its face the court will receive no evidence of usage,

but will place upon the words of the parties their

common meaning; in other words, in those de-

cisions the courts ran the words of the parties

through a judicial sieve whose meshes were in-

capable of retaining anything but the common

meaning of the words, and which permitted the

meaning which the parties had placed upon them

to run away as waste material. Surely those courts

did not believe that words are always used in their

orthodox sense.’’ 16 P. 2d at 630.

Professor Corbin has written:

“It is true that when a judge reads the words of

a contract he may jump to the instant and confi-

dent opinion that they have but one reasonable

meaning and that he knows what it is. A greater

familiarity with dictionaries and the usage of

words, a better understanding of the uncertain-

ties of language, and a comparative study of more

cases in the field of interpretation, will make one

beware of holding such an opinion so recklessly

arrived at.’’ 3 Corsix, Contracts, § 535, pp. 17-18

(1960). See also IX Wiaore, Evipence, § 2463

(3rd ed. 1940).

While there is a conflict in the authorities as is recog-

nized in Hurst v. W. J. Lake & Co.; 3 Corstx, Coy-

99

—ad

TRACTS, § 535; 3 WILLISTON, Contracts § 650; and IX

WiaemMore, EvivENCcE, § 2463, all supra, the old common

law ‘‘plain meaning”? rule should have no application

to collective bargaining agreements as it would serve

to frustrate the policy of achieving peace through

ability to arrive at agreement.

The approach of the Sixth Cireuit in finding the

parol evidence rule in its most traditional restrictive-

ness applicable to exclude other evidence of the true

meaning of the contract is contrary to the policy of the

national labor laws.

5. The Decision Below Raises Significant Questions Con-

cerning Abuse of Appellate Procedure By Requiring

Double Appellate Review and the Opinion Reconsider-

ing a Prior Decision On the Merits Is in Conflict With

Applicable Decisions of This Court.

An appellate court may deny an extraordinary writ

such as mandamus either because the remedy is not

appropriate or on the merits. Ez Parte, Bakelite

Corp., 279 U.S. 438 (1929) ; Louis v. Brown Township,

109 U. S. 162 (1883) ; and U. S. v. U. S. District Court,

444 F. 2d 651, 655 (6th Cir. 1971), aff’d 407 U. S. 297

(1972).

Tf the mandamus petition is denied on the merits,

the action of the Court is res judicata. Louis v. Brown

Township, supra; Block v. Commissioners, 99 U.S. 686

(1878) ; Overstreet v. County of Butte, 20 Cal. Reptr.

631, 370 P. 2d 335 (1962) ; Hollywood Circle v. Depart-

ment of Alcoholic Bev. Con., 55 Cal. 2d 728, 13 Cal.

Reptr. 104, 361 P. 2d 712 (1961); Burdick v. Harbor

Doe ee

23

Spring Lumber Co., 167 Mich. 673, 133 N. W. 822

(1911). See cases collected at Annot. 21 ALR 3d 206

(1968).

The decision below held that the question of whether

Respondent was entitled to a jury trial could be recon-

sidered on appeal. It cited a Sixth Circuit case which

had denied mandamus on the merits, Black v. Boyd,

248 I’. 2d 156 (6th Cir. 1957), and a First Circuit ease

which had denied mandamus as inappropriate, In re

Previn, 204 F. 2d 417 (1st Cir. 1953). The necessary

assumption was that the court had denied mandamus

as inappropriate as in In re Previn, supra, rather than

on the merits. See pp. 50, 51 of the appendix hereto.

The Court erred in its assumption that it had not

decided the merits in denying mandamus. The grounds

argued for denial of mandamus on the merits were that

the District Court had acted within its discretionary

powers in allowing amendment of the complaint on the

condition that the case proceed to trial without a jury.

This was the sole reason given by the Sixth Circuit

panel which denied mandamus as is shown by the de-

cisional portion of its order as follows:

‘“‘[L]eave to file an amended complaint may be

granted by the court subject to reasonable condi-

tions and that the attaching of such conditions, in-

cluding the striking of a timely demand for a jury

trial on issues raised by the amended complaint, is

within the sound discretion of the Court; upon con-

sideration, it is ORDERED that the petition for man-

damus be, and it hereby is denied. See Parissi y.

Foley, 203 F. 2d 454 (2d Cir. 1953).”’

24

This Order does not contain any language stating either

directly or by inference that mandamus was denied as

inappropriate as did the opinion In Re Previn, supra.

Even the Union understood the Sixth Circuit to have

reached the merits. Its application to Circuit Justice

Potter Stewart for a stay stated that the Sixth Circuit

had “‘affirmed’”’ the action of the District Court.

The writ of mandamus, providing an exception to

the usual federal policy against ‘“‘piecemeal appeals’’,

Black v. Boyd, 248 F. 2d 156, 159 (6th Cir. 1967), does

not create a right to double appeals.

Respondent did not seek certiorari from the denial

of mandamus. “If [it] was not content with the first

ruling, [its] remedy was by certiorari to this court.

Angel v. Bullington, 330 U. S. 183.” Brownell v.

Chase Nat. Bank, 352 U. S. 36, 39 (1956).

The reconsideration by the Sixth Circuit of an is-

sue it had previously decided on the merits is in conflict

with the recognized principles of the common law and

the decisions of this Court holding that a denial of

mandamus is res judicata. The decision of the Sixth

Circuit encourages multiple appellate review of iden-

tical issues.

25

CONCLUSION

The opinion of the Sixth Circuit ignores specific

agreements made during bargaining sessions and prac-

tices which have been honored by the Company and the

Union for 25 years. It jeopardizes GE’s ability to re-

main viable in the receiving tube industry in facing

offshore competitors and domestic competitors with

offshore facilities and sources.

The Court of Appeals reversed not only the District

Court’s considered judgment as reflected in its Find-

ings of Fact and Conclusions of Law, but its own prior

decision, remanding the case for trial before a jury and

prohibiting any evidence of bargaining history, past

practice and usage. If GE must be subjected to a seec-

ond trial, it should not be forced to again defend the

Union’s claim for $4 million dollars, damages and in-

junctive relief, handicapped by the Sixth Circuit de-

cision excluding evidence of the specific agreements and

practices showing the meaning of the collective bargain-

ing agreement.

Because of the conflicts in the decisions of the Cir-

cuits and for the significant reasons of national policy

as stated above, a Writ of Certiorari should issue to

review the judgment and opinion of the Sixth Cireuit.

Respectfully submitted,

Morton J. Hoiproox

RaLtepH W. WIBLE

100 St. Ann Street

Owensboro, Kentucky 42301

Counsel for Petitioner

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