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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 414 U.S. 822

## Text

“> 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

LEP POO

een Png, Yin Rie
peti emis We

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0443%3A1. Public record. Not legal advice.