Opposition Brief — Anchor Motor Freight, Inc. v. Scott

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES ......... ever eo i

STATEMENT OF THE ISSUES PRESENTED

RNG Ws ee eG ler eee ae 1

STATEMENT OF THE CASE .............. Sue

ARGUMENT:

A. THERE WAS NO CONFLICT BETWEEN

THE JUDGMENT OF THE COURT AND |

See RULE OF THE Baw oa ee 6

B. PLAINTIFF MADE A REASONABLE AT-

TEMPT TO INVOKE THE GRIEVANCE

PRA oie a oe eee ee 9

C. THIS APPEAL FROM A JURY VERDICT

IS INAPPROPRIATE FOR CERTIORARI .. 13

CETTE sere i Pe ia Se aes 14

TABLE OF AUTHORITIES

Associated Transport, Inc., 32 L.A. 152 (Campbell,

SI ee Nh hut eee aa ewe a 7

DeArroyo v. Sindicato de Trabajordes Packinghouse,

425 F.2d 281 (CA 1), cert. denied 400 U.S. 877

NG eee ia Mec Na A IRE a finan Weges 2 1]

Expert Dairy Service, Inc., 45 L.A. 217 (1965) |... 7

Fontaine Truck Equipment Co., 38 L.A. 829 :

Crunree, Armeeenen, Tomer 6 ee. 7

Glover v. St. Louis-S.F. Ry., 393 U.S. 324 (1969) .. 12, 15

Ideal Cement Co., 20 L.A. 480 (Merrill, Arbitrator,

Te a ee ips Ee ne mene bay op 7

Instant Milk, 24 L.A. 756 Aaeeida, Arbitrator,

rice x gah aie Skee aN Ohare sy oo Se ET 8 4 7

International Auto Sales v. eee 270, 313 F. eae

Pa, Se By ROOD ek Say ee

Miller v. ICX, 358 F. Supp. 1378 (D.C. In, 1972) er

Retana v. Apt. Motel and Elevator Operators Union

Local 14, 453 F.2d 1018 (CA 9, 1972) .... rer

Republic Steel v. Maddox, 392 U.S. 652

See panier ae .. 56, 10, 15

Schum v. South Buffalo Reilway C o., 73 L.C. 14,492,

ee Ae. | eee 11

Smith v. Pittsburgh Gage & Supply Co., 464 F204

Gre SUAe; fered 66k 6

Spector Freight System, Inc., 34 LA. 149 (1960) 7

Texas Lime, 49 L.A. 408 (Emery, Arbitrator, 1967) .. 7

Vaca v. Sipes, 386 U.S. 171 (1967) .... 9, 10, 18, 14, 15

Williams v. Dana Corp., 442 F.2d 412 (CA 6, 1971) 1]

IN THE

SUPREME COURT OF THE UNITED STATES

No. 74-6 |

ANCHOR MOTOR FREIGHT, INC.,

: Petitioner,

vs.

~WILLIAM SCOTT,

_ Respondent.

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On Petition for 5 Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

BRIEF OF WILLIAM SCOTT IN OPPOSITION

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STATEMENT OF THE ISSUES PRESENTED

FOR REVIEW

1. When an employer, acting in bad faith in order to

ierminate an employee it dislikes, coerces a company

doctor to change his professional opinion and er-

roneously declare, contrary to medical knowledge, that

the employee is not qualified to drive, may the court

sustain a jury verdict holding the employer to have

acted unjustly in breach of a labor agreement which

forbids wrongful discharge? .

' 2

2. Where the union controls the grievance procedure and

where the jury found that the employee complied with

the procedure by filing his grievance with the union by

certified mail and ,that the union was guilty of unfair

representation, was there sufficient evidence of a reas-

onable attempt to exhaust remedies as to permit suit

against the employer for breach of contract under the

doctrine of Vaca v. Sipes?

STATEMENT OF THE CASE

This was an action for wrongful discharge in breach of a

labor agreement. }

Plaintiff William Scott had thirteen years seniority as a

truck driver for Defendant Anchor at the time of his dis-

charge in July, 1966. Through diet, oral medication and an

understanding of his condition, Scott had been able to

control his mild diabetes, which had never interfered with

‘his driving (203):.'| Each and every year since the onset

of diabetes in 1959, he' had met ICC standards and was

certified as a qualified driver (200) and his condition was

well known by the company (204). ~

On _ May 6, 1966 and again on June 21, 1966, he was

examined by the company doctor, Louis Ralston, and

found to be qualified under ICC rules and was given an

ICC cettificate (220, 602, 603). On july 6, 1966, Dr.

Ralston wrote:

“He is qualified as a driver under normal ICC require-

ments.”” (604).

_ The company was angry at Scott because he had recently

filed ten pay claims and other miscellaneous complaints

_ ' References are to the pages of the trial transcript reproduced in the

joint appendix in the Court of Appeals.

‘ \

rower

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with the company (222-229, 619). His disputes with the

company reached a climax on June 17, 1966, when he was

reprimanded for alleged “insubordination” (491).

Company officials were anxious to get rid of Scott. They

were not satisfied with the doctor's admonition that if the

company wanted to fire Scott, it would have to impose

“more rigid requirements than the minimum ICC re-

quires.” (604). Company Safety Director Thomas then

suggested to his assistant that “he contact Ralston to see

if he would change his doctor's statement” (483-484) .

Thomas wrote:

“I suggested to Bob (DeLeo) that he contact Dr.

Ralston to see if he would want to change his statement

concerning the driver’s qualifications . . . it is niyv

opinion that Dr. Ralston will want to change his

opinion .. .” (634).

Thomas's insistence that the doctor change his opinion

was not based on any medical wisdom possessed by Anchor

officials, who admitted they knew nothing about diabetes

or the details of Scott’s condition (509, 482, 489, 515). The

jury could reasonably infer that the motive for pressuring

the doctor was the company’s dislike of Scott.

In any event, Dr. Ralston succumbed to the pressure

from Anchor and wrote a letter alleging that Scott’s oral

medication could cause adverse effects which would make

him a safety hazard. This opinion was contrary to medical

knowledge and ICC practice and was promulgated without

any new examination or new facts or investigation and was

at odds with his previous report. Within a few hours after

receipt of the new report, the company fired Scott, without

any further background inquiries or investigation or op-

portunity for Scott to explain his condition or “warning

notice of the complaint” as required by Article 32 (608) .

4

At the time of the discharge, there was a “sweetheart”

collusive relationship between the company and union

(Local $77 Teamsters) (58). The union was providing

virtually no representation. There was no steward or

grievance committee operating, even though sanctioned by

contract (209, 399, 471, 543). The Court of Appeals

noted that at the time “Local 377 did not have the requi-

site machinery to process a grievance.” Neither the com-

pany nor union had distributed copies of the labor agree-

ment to the drivers and none were available (471, 543).

Union representatives Angelo and Schwartz, who subse-

quently were convicted of federal crimes (139), had re-

ceived personal favors from the Anchor terminal manager

(62, 63, 114, 115). Angelo had shown personal hostility to

Scott and the Anchor drivers from Ohio and Kentucky,

whom he called “hillbillies” (233, 542).

Immediately after his discharge, Scott went to the com-

pany premises to protest the discharge, left his name, and

was denied access (234). During the two weeks following

his discharge, the company terminal was shut down because

of vacation (89) .

In accordance with normal practice, Scott filed several

copies of his grievance with the union and requested a

hearing (621, 528, 532). He understood that the union

would file a copy of the grievance with the company, and

the union assured him he would get a hearing (238, 313,

155). The «union received the grievance by certified mail,

within a sudicient time to file a timely grievance with the

company (624). During the weeks and months after his

discharge, Scott made inquiries concerning his grievance

(212, 238, 313, 152, 320, 541.) In 1967, Scott wrote to the

company and union requesting information regarding the

status of the grievance (617). Neither company nor union

replied. The union, during all this time, had failed to file

5

the grievance with the company or request a hearing and

had totally failed to provide any help or representation for

Scott.

Suit for breach of contract and unfair representation was

filed April 4, 1958. Trial was held in August, 1972.

At the trial, two expert diabetes specialists testified that

Dr. Ralston’s opinion was one hunderd percent contrary

to medical knowledge and that Scott’s oral medication did

not pose any real danger for a driver (333, 334, 350-53, 390-

93) and that Scott was qualified under the standards which

the ICC was using. Those practices appear in the current

ICC regulations:

“If mild diabetes is noted at the time of the exami-

nation and is stabilized by use of a hypoglycemic drug

and a diet that can be obtained while a driver is on

duty, it should not be considered disqualifying (Sec-

tion 391.43 (c) , Title 49, Chapter I, Part 391, Subpart

E).”

The company did not offer any expert medical opinion to

refute plaintiff's experts.

At trial, Mr. Baccei, the ex-ICC man, admitted telling

Dr. Ralston that oral medication should not be considered

disqualifying (462). He also admitted that the ICC made

no ruling in Scott's case (463). At trial, it was shown that

another driver, Jones, who had more severe diabetes than

Scott, was temporarily disqualified for a few days by Dr.

Ralston but was not fired and was subsequently qualified

(93-95, 220-221, 615).

Thus, there was powerful evidence of a pretextual dis-

criminatory discharge. The jury could have found that

Scott was fired because he was a “trouble maker” and not

because of diabetes.

Plaintiff argued that, as a matter of law, he had satisfied

the requirements of the Republic Steel v. Maddox, 392 U.S.

it serene

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652 (1969) , since Scott had clearly made a good faith “at-

tempt to use the contract grievance procedure” and he

afforded the union every “opportunity to act on his behalf.”

Dctendants disagreed, arguing that Scott had not foiiowed

the contract procedures in a timely manner. The Court

submitted the timeliness and exhaustion issues to the jury.”

The jury agreed with plaintiff's version of the facts. and

also found that the union had breached its duty of fair

representation.

The jury found the company discharged plaintiff with-

out just cause and returned a verdict of $12,500.00 from

which judgment defendant Anchor now appeals.*

ARGUMENT

A. THERE WAS NO CONFLICT BETWEEN THE

JUDGMENT OF THE COURT AND THE RULES

OF THE L.C.C.

Scott claimed that he was unjustly discharged in breach

of the labor agreement which provides that the employer

shall not discharge an employee “without just cause” and

that if there is an “injustice’’ the employee shall be rein-

stated (Aracie 32, 608).

2 For another case where the exhaustion issue was submitted, to the

jury see: Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870 (CA 3,

1972).

3 The trial consolidated plaintiffs separate claim against the union

for unfair representation. The jury returned a verdict for $12,500.00

against the union. The Court of Appeals affirmed the judgment of lia-

bility but ordered a new trial on the issue of damages and attorney

fees. The union has indicated an intent to petition this Court concerning

the damage issue. (Case No. A-1348)

7

Any question of i:nedical fitness for work is subject to

the grievance and arbitration procedures (Article 34; 609,

117-118). Arbitrators, as a matter of course, review ques-

tions of medical fitness in cases where truck drivers subject

to ICC regulations have been discharged, Texas Lime, 49

L.A. 403 (Emery, Arbitrator, 1967) , Expert Dai-y Service,

Inc., 45 L.A. 217 (1965), Spector Freight Syscem, Inc., 34

L.A. 149 (1960) , Fontaine Truck Equipment Co., 38 L.A.

829 (Petree, Arbitrator, 1962) , Associated Transport, Inc.,

32 L.A. 152 (Campbell, Arbitrator, 1959) . In a Section 301

breach of contract case, the court and jury perform the

functions normally performed by the arbitrator.

Defendant's position, that the unilateral and clearly er-

roneous determination of a company controlled doctor shall

govern the issues im this case as a matter of law, is com-

pletely at odds with well settled principles of labor relations

subjecting such decisions to legal review under the contract

grievance machinery. See, for example, Ideal Cement Co.,

20 L.A. 480 (Merrill, Arbitrator, 1953) (an employee can-

not be summarily discharged simply on the basis of a letter

from a company physician), Instant Milk, 24 L.A. 756

(Anderson, Arbitrator, 1955) (“management must accept

the responsibility” where “a medical examination given by

the company’s physician is proved to be mistaken.”’)

The employer argued to the jury and now to this Court

that it was “compelled” by the ICC to discharge Scott and

forever deprive him of this seniority and pension rights.

The jury rejected the employer's version of the facts and

agreed with plaintiff that the “ICC” defense was pre-

textual and plain nonsense. Scott wes fired, not because of

diabetes or ICC rules, but because of Anchor's desire to rid

itself of a fighter who stood up for his contractual rights.

There was a mountain of evidence that Dr. Ralston’s

opinion was coerced and was fraudulent, and that Anchor

of

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never really believed that Scott was unfit under ICC rules.

Furthermore, the uncontradicted medical testimony showed

that the taking of oral medication does not create a safety

problem, and that a mild diabetic, like Scott, who is weil

controlled, did, in fact, meet ICC criteria. Thus, there

was no conflict between contractual and ICC obligations.

A case directly in point is International Auto Sales v.

Local 270, 313 F. Supp. 313 (E.D. of La., 1970). The arbi-

trator found that a discharged employee was medically fit

under ICC rules and that the employer's purpose in requir-

ing a physical examination was “a subterfuge to rid them-

selves of an employee who they decided they could do best

without.” As in the case at bar, company officials wrong-

fully instructed the doctor to find the employee not quali-

fied. The court refused to vacate the arbitration award, in

spite of the company’s argument that the arbitrator's order

of reinstatement would cause the company to violate ICC

safety regulations.

The case of Miller v. ICX, 358 F. Supp. 1378 (D.C. IIL,

1972) cited by defendant actually helps plaintiff's position.

In Miller, plaintiff had a history of diabetes ‘“‘which required

insulin for control.” Insulin using diabetics are disquali-

fied under ICC rules (461). Scott, unlike Miller, never

used insulin and he was therefore not subject to insulin

shock or convulsions. Scott, as a mild, non-insulin using

diabetic, was qualified by under ICC rules (333-353, 391-

393). In additioni, there was no evidence in the Miller

case of a pretextual discharge or improper attempts to coerce

a doctor in order to get rid of an employee disliked and un-

wanted for reasons unrelated to medical fitness.

Furthermore, the issues under ICC rules as to driving and

the issues under the labor agreement are not identical.

Anchor’s arguments overlook the obvious fact that ICC

rules do not require or even discuss discharge or loss of

9

seniority rights. “The normal employer dispositior of a

health problem would be a temporary suspension or leave

of absence in order for the employee to become rehabili-

tated, as was done in the case of diabetic Jones (93-95,

615). However, Anchor summarily discharged Scott with-

out such consideration or any attempt to find him tem-

porary light work or a non-driving position as a yard or

dock man while receiving treatment. Furthermore, the

ICC never made any ruling or issued any order concerning

Scott, and in fact his ICC certificate has never been re-

voked.

The decision of the court and jury is tocally in harmony

with ICC regulations and there is no cenflict of any kind

presented by this record. ,

B. PLAINTIFF MADE A REASONABLE ATTEMPT

TO INVOKE THE GRIEVANCE PROCEDURE.

Defendant concedes on page 23 of its brief that “where

the union has sole and exclusive control over access to

steps of the grievance machinery and where-unfair repre-

sentation is proven, an employee is entitled to some pro-

tection.” Such concession of course, is required by the

language of this court in Vaca:

“We think that another situation where the employee

may seek judicial enforcement of his contractual rights

arises if, as is true here, the union has sole power

under the contract to invoke the higher stages of the

grievance procedure and if as is alleged here, the em-

ployee plaintiff has been prevented from exhausting

his contractual remedies by the union’s wrongful re-

fusal to process the grievance.

“For these reasons we think the wrongfully discharged

10

employee may bring an action against his employer

in the face of a defense based upon the failure to

exhaust contract remedies, provided the employee can

prove that the union as bargaining agent breached

its duty of fair representation in its handling of the

employee's grievance.” Vaca v. Sipes, 386 U.S. at 171.

In the case at bar, the “union” (not the employee) had

the sole and exclusive right to request a “hearing” as to

an employee’s discharge (Article 32, 608). The contract

speaks of the “employee’s right (not on his own, but)

through the union to challenge a penalty through the regu-

lar grievance procedure” (611). Article 34 gives the union

(not the employee) the right to obtain a medical examina-

tion if the union (not the employee) believes there is an

injustice (609). Thus, the union (not the employee) con-

trolled all the steps of the grievance procedure by which

Scott could protest a wrongful discharge because of alleged

medical unfitness.

The jury correctly concluded that Scott, by mailing

several copies of his grievance by certified mail, well within

the ten day period, had substantially satisfied the contract's

requirements concerning the taking of an appeal under

Article 32. At the time of his discharge, there was no

steward and no union committee available to help Scott.

In addition, the terminal was shut down and the other

union members were on vacation. By filing copies of his

grievance with the union, Scott followed normal practice

and took the most logical and reasonable step to ensure

that his grievance would wceive a hearing. Since the

union controlled the employee's ability to protest the dis-

charge penalty, obtain a hearing and obtain an impartial

medical examination, Scott's efforts directed toward the

union constituted a reasonable attempt to comply with the

contract under the Maddox-Vaca doctrine.

1]

It is true that the Vaca doctrine may result in the em-

ployer being faced with a lawsuit, without prior notice in

the grievance procedure. The reason for the exception to

the exhaustion doctrine was stated by this court in Vaca:

“Nor do we think that Congress intended to shield

employers from the natural consequences of their

breaches of bargaining agreements by wrongful union

conduct in enforcement of such agreements.” 386

U.S. 186.

Post-Vaca cases have excused employees from rigid compli-

ance with the technicalities of grievance procedures, where,

as here, there is a breach of fair representation, Retana v.

Apt., Motel and Elevator Operators Union Local 14, 453

F.2d 1018, (CA 9, 1972) , DeArroyo v. Sindicato de Traba-

jordes Packinghouse, 425 F.2d 28h (CA 1), cert. denied

400 U.S. 877 (1970), Williams v. Dana Corp., 442 F.2d

412 (CA 6, 1971), Schum v. South’ Buffalo Railway Co.,

73 L.C. 14,492 (CA 2, April, 1974). In all of the above

cases, the employee filed his grievance with the union,

but not the employer and the court nevertheless found

standing to sue the’employer because of the unfair repre-

sentation. © The rationale stated in Schum applies with

equal force in the Scott case:

“Here Schum properly invoked the union’s power,

aid and prestige to obtain the benefits of union repre-

sentation in his protest against the wrongful discharge.

Reassured on several occasions by union officials that

his grievance would be processed administratively,

Schum understandably left the matter in the hands of

the union. He did not learn of the union’s lack of

diligence until months after he had lost the right to

resort to the contractually-prescribed procedures on

his own. Under these circumstances, Schum cannot

be denied his day in court against his employer be-

12

cause his union failed to provide his fair representa-

tion. As stated by the Supreme Court in Vaca:

‘It is true that the employer in such a situation

may have done nothing to prevent exhaustion of

the exclusive contractual remedies to which he

agreed in the collective bargaining agreement.

But the employer has committed a wrongful dis-

charge in breach of that agreement, a breach

which could be remedied through the grievance

process to the employee-plaintiff’s benefit were it

not for the union’s breach of its statutory duty of

fair representation to the employee. To leave

the employee remediless in such circumstances

would, in our opinion, be a great injustice.’ . . .

386 U.S. 185-186.”

The employer cannot seriously complain of prejudice in

the case at bar. Anchor was verbally notified of Scott's

protest on the day after his discharge when he visited the

company premises (234), and again when the union in-

quired concerning his case in August, 1966 and finally in

1967 when Scott wrote the company (617). Anchor made

no inquiries or efforts to contact Scott. In addition, the

employer, which (1) maintained a “sweetheart”, collusive

relationship with the union, (2) violated the procedures

of the labor agreement by failing to issue a pre-discharge

warning notice (Article 32, 608), and (3) acted fraudu-

lently with respect to the discharge, is estopped from com-

plaining concerning any technical deficiencies. In addi-

tion, the bad faith posture of both employer and union

during this period when the grievance machinery was in-

operative, brings into play the “futility” doctrine set forth

in Glover v. St. Louis-S.F. Ry., 393 U.S. 324 (1969)

(“where the effort to proceed formally with the contractual

or administrative remedies would be wholly futile.’’)

Scott is a third party beneficiary of the employer's prom-

13

ise to treat its employees with justice. It is only because

of the union-sponsored grievance machinery that the “ex-

haustion” requirement was developed. Where the machin-

ery breaks down, where the union fails to provide fair

representation or where collusion and employer bad faith

renders utilization of the procedure futile, the reason and

purpose behind the necessity for the exhaustion rule vanish.

So it was in the Scott case. The aggravated fact pattern —

showing hostility and bad faith on the part of both the

employer and the union — provides a classic example of

why an employee should be allowed to sue on the contract

under the Vaca doctrine.

C. THIS APPEAL FROM A JURY VERDICT IS IN-

APPROPRIATE FOR CERTIORARI.

The basic issues in this case were factual, not legal.

Defendant says there was a conflict between the ICC and

the court. Yet the ICC made no determination of any kind

as to Scott’s fitness. In addition, there was no medical

testimony refuting plaintiff's two experts who testified that

Scott’s condition did not present safety problems or violate

ICC standards. Furthermore, there was evidence that

Scott’s discharge was prete~tual and completely unrelated

to health or ICC regulations. Thus, the purported conflict

between ICC law and the law of labor agreements, which

defendant claims might be of interest to this Court, is

not even present in the case at bar.

Similarly, no important issue concerning exhaustion of

remedies doctrine is posed in this case. Exhaustion is not

required where, as here, union unfair representation pre-

vents the employee from obtaining relief under a union-

controlled grievance procedure. In any event, the jury

14

found that Scott complied with the contract’s provisions

concerning timeliness of appeal. Thus, the jury, in effect

found that Scott did exhaust grievance remedies. In view

of the jury finding of unfair representation and the cases

allowing suit for breach of contract under these circum-

stances, this appeal presents no new, unusual or important

issues for this Court.* Furthermore, the decision of the

court below is not in conflict with any decision of this

Court, and there is no conflict of law between the Circuits

on the rules of law governing this case.

‘CONCLUSION

This record displays one of the most flagrant cases of

wrongful discharge and unfair representation in the annals

of post-Vaca reported cases. Evidence of collusion and

subjective bad faith on the part of both company and

union officials permeate the transcript.

The jury could have found a pretextual bad faith dis-

charge in which the company deliberately pressured its

doctor to alter his professional opinion to produce a result

one hundred percent at odds with medical knowledge.

There was no conflict between ICC rules under which

Scott as a mild, non-insulin using diabetic, had been qual-

ified for years, and the labor agreement, which requires

an employer to treat his employee justice. Under both

ICC and contract rules, Scott was a qualified driver and

was treated unjustly by Anchor.

Scott, by filing his grievance with the union, followed

normal practice. Since the union had control of his ability

4The questions defendant seeks to present in its third and fourth

arguments were not raised in the court below and are so obviously in-

appropriate for certiorari and so obviously frivolous as to not deserve

reply.

15

to obtain relief under the contract, filing with the union

constituted a reasonable attempt to exhaust remedies. The

jury's findings of (1) unfair representation and (2) timely

compliance with the grievance procedure allows plaintiff

to sue for breach of contract under the principles set forth

by this Court in Vaca, Maddox and Glover.

No important legal issues are raised by this appeal from

a jury verdict involving questions of fact.

For all these reasons, the petition for a Writ of Certiorari

should be denied.

Respectfully submitted,

PAUL H. TOBIAS

911 First National Bank Building

Cincinnati, Ohio 45202

Telephone: 513/241-8137

Of Counsel:

GOLDMAN, COLE AND PUTNICK

911 First National Bank Bldg.

Cincinnati, Ohio 45202

NIKI K. SCHWARTZ, ESQ.

1100 Investment Plaza

Cleveland, Ohio 44114