# Appendix — Satterwhite v. United Parcel Service, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1974
- **Citation:** 419 U.S. 1079

## Text

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APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

No. 73-1166

Ricuarp R. SATreRwWuitE, JR., ET AL.,

Appellants
v.

Unitep Parcen Service, Inc., Appellee

(D. C. Civil Action No. C-3070)

AppEaL From tue Unirep States District
Court ror THE District or CoLorapo

Decided May 3, 1974

‘fore BREITENSTEIN, Barnes and Barrett, Circuit Judges.

BREITENSTEIN, Circuit Judge :—-The issue here is
iether an employee’s right to sue under §16(b) of the
ir Labor Standards Act, 29 U.S.C. § 216(b), for overtime
mpensation claimed under §7(a)(1), 29 U.S.C. § 207 (a)
) is foreclosed by prior submission of his claim to final
bitration under the grievance procedure of a collective-
rgaining agreement. The trial court granted judgment
the employer. We affirm.

The facts are not in dispute. Plaintiff-appellant Satter-
ite sued for himself and others similarly situated.
'ty-eight other employees of defendant-appellee have
d their written consents to become parties plaintiff in

‘Senior Judge, United States Court of Appeals, Ninth
cuit, sitting by designation.

2a

accordance with $16(b). Plaintiffs are members of
Delivery Drivers, Warchousemen and Helpers, Local Union
No. 435, which has a collective-bargaining agreement with
the employer. The period involved is December 29, 1970,
to September 15, 1971, the date of expiration of the perti-
nent labor contract. The cause of the controversy was the
elimination by employer of two 15-minute coffee breaks for
which there had previously been no deduction in pay.
Employer claimed the right to eliminate the coffee breaks
because the labor contract did not cover that subject.

The labor contract has a three-step grievance procedure
eulminating in compulsory arbitration. A grievance is
defined as ‘fa dispute, misunderstanding, or controversy
involving the interpretation, construction, intent, or mean-
ing of this Agreement”’ with exceptions which are not
pertinent. The arbitration award is binding and con-
elusive unless beyond the jurisdiction fixed by the contract.
No claim is made here that the award exceeded the juris-
dictional grant.

The labor contract provides for compensation at 1 and
14, times the straight hourly rate for time worked in excess
of 40 hours per week or 8 hours per day, each exclusive of
lunch periods. The employees filed a grievance claiming
pay for the extra !, hour a day of work, or 2 and 14 hours
per week, resulting from the elimination of the two 15-
minute coffee breaks. The matter was not settled in the
first two grievance steps and the union demanded
arbitration.

The company asserted that the controversy was not
arbitrable because the laber contract did not cover coffee
breaks. The union then sued in the United States District
Court for the District of Colorado for specific performance
of the arbitration clause. The court) gave summary
judgment to the union and ordered the company to
arbitrate.

3a

The controversy was then submitted to an arbitrator who,
in a comprehensive written opinion, held that the company
could not unilaterally eliminate the paid coffee breaks and
that the employees were entitled to % hour pay for each
day worked during the pertinent period. The union and
the company then executed and presented to the arbitrator
a written joint request for a supplemental decision on
whether the award should be paid at straight time or at
time and 45. The arbitrator, in a carefully considered
written opinion, held that payment should be at straight
time. It is reasonable to infer that the arbitrator eom-
promised by giving the employees all the time which they
sought while deciding the rate of pay in favor of the com-
pany. The award was paid andthe employees have
received what was due to them thereunder.

é

This suit was then brought under FLSA $16(b) to
recover time and 14 for work in excess of 40 hours per week.
FLSA §7(a)(1) provides for pay at 1 and 14 times the
straight rate for work in excess of 40 hours per week.
This differs from the arbitration award which gave the
employees a straight rate extra 14 hour pay for each day
worked. The company pleaded the arbitration award as
a defense.

On the authority of Alexander v. Gardner-Denver Com-
pany, 10 Cir., 466 F.2d 1209, the district court held that
the arbitration award was final and dispositive. Judgment
was entered dismissing the action. During the pendency
of the instant appeal, the Supreme Court reversed Gardner-
Denver. 94 S.Ct. 1011.

Tn Gardner-Denver an employee’s claim of racial dis-
crimination had been submitted to arbitration in ac-
cordance with a collective-bargaining agreement. Prior
to the arbitration hearing the employee filed a charge of
racial discrimination with the Colorado Civil Rights Com-
mission which referred the complaint to the federal Equal

4a

imployment Opportunity Commission. The arbitrator
ruled that the employee had been discharged for just cause
and made no reference to the discrimination claim. There-
after EEOC determined that there was not reasonable
cause to believe that a violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., had occurred.
The employee then filed suit in federal court asserting a
violation of the Act. See 42 U.S.C. § 20000-2(a) (1).

In Gardner-Denver the Supreme Court was concerned
with Title VII of the Civil Rights Act. We are concerned
with the Fair Labor Standards Act. The employees here
read Gardner-Denver as holding that the arbitration of a
contract right is no defense to judicial determination of
a statutory right and, hence, they may maintain and secure
their statutory right by federal court suit. Gardner-
Denver dealt with racial discrimination. The dispute here
is over the rate of pay for overtime.

Gardncr-Denver recognizes the federal policy favoring
arbitration of labor disputes and reviews the pertinent
decisions. See 94 S.Ct. at 1018 and particularly n. 6, 7.
The Court summarized jis decision thus, Ibid. :

‘*For the reasons ycated in Parts IIT, IV, and V of this
opinion, we hold that the federal policy favoring arbitra-
tion does not establish that an arbitrator’s resolution of a
contractual claim is dispositive of a statutory claim under

Title VII.”’

Our problem is whether such an award is dispositive
of a statutory claim under FLSA.

Gardner-Denver says that the legislative history of Title
VII manifests a congressional intent to allow an individual
to pursue rights under both Tithe VII and other applicable
state and federal statutes. Aecordingly, Title VIL supple-
ments rather than supplants existing laws and institutions
relating to employment discrimination, 94 S.Ct. at 1019-

da

1020. The doctrine of election of remedies is held in-
applicable in a situation involving statutory rights dis-
tinetly separable from contract rights even though the
violation of both rights may have resulted from the same
factual occurrence, Tbid. at 1020-1021. Resort to arbitra-
tion does not waive the Title VII cause of action because
the statutory rights conferred cannot be prospectively
waived and they form no part of the collective-bargaining
process, Ibid. at 1021-1022. The Court comments that an
arbitrator's authority ix confined to the resolution of ques-
tions of contractual rights, regardless of whether they
resemble or duplicate Title VIT rights. Thid. at 1022.
The Court rejects the argument that to permit an employee
to have recourse to both arbitral and judicial forums is
unfair to the employer, stating that by a Title VIT action
an employee is asserting a statutory right independent of
the arbitration process and such right simply is not given
by statute to the employer. Ibid. at 1022-1023. The
Court also says that a poliey of deferral by federal courts
to arbitral decisions would not comport with the congres-
sional objective that federal courts should exercise the
final responsibility for enforcement of Title VII. Thid. at
1023-1025,

The acceptance of the Court's analysis and reasoning in
Gardner-Denver does not solve our problem unless we
equate the wages and hours provisions of FLSA with the
anti-discrimination provisions of Title VII. Strong
national policy ix expressed both in Title VIT, 94 S.Ct. at
1019, and in FLSA, see 29 U.S.C. § 202, and Brooklyn
Savings Bank v. O'Neil, 324 U.S. 697, 706-707, 5 WH Cases
232. These policies, each in its turn, should be balanced
against the federal policy favoring arbitration of labor
disputes,

In a number of respects FLSA is importantly different
from Title VII. Gardner-Denver refers to the significant
role of private individuals in the enforcement of Title VII

6a

rights. 94 S.Ct. at 1018. In Employees ete. v. Depart-
ment of Public Health and sro of Missouri, 411 U.S
279, 286, 20 WH Cases 1254, 1256, the Court said that,
‘<* * * private enforcement of “ [FLSA] was not a para-
mount objective * * *.’? The independent statutory
remedies in Title VII evince an intent to aceord parallel
or overlapping relief apart from contractual processes.
The absence of such procedures in FLSA suggests a
greater reliance on contract remedies and a lesser emphasis
on individual enforcement.

Additionally, the Portal-to-Portal Act of 1947 29 U.S.C.
§ 251 et seq., resulted from congressional dissatisfaction
with judicial interpretation of FLSA. See 29 U.S.C.
$251(a). It established the defense of good faith reliance
on administrative regulations, 29 U.S.C) $259(a), and
declared the congressional policy ‘‘to protect the right of
collective bargaining ana * * * limit the jurisdiction of
the courts.’’ 29 U.S.C. §251(b). The unavailability of
the good faith defense in the ease at bar is not pertinent.
The point is that in certain cireumstances good faith is a
defense to an FLSA action. The defense, however, is not
available in Title VII actions. See Griggs v. Duke Power
Co., 401 U.S. 424, 482, 3 FEP Cases 175 and Jones v. Lee
Way Motor Freight, Ine., 10 Cir. 451 F. a 245, 250, 2 FEP
Cases 895, cert. denied 401 U.S. 954, 3 FEP Cases 193.
The Portal-to-Portal Act speaks to the ikl ction of collee-
tive bargaining. Gardner-Denver says that, 94 S.Ct. at
1019, **Title VIT does not speak expressly to the relation-
ship between federal courts and the grievance-arbit ration
machinery of collective-bargaining agreements.’’ The
different approach to the defense of good faith and the
different emphasis on collective bargaining indieates that
Congress intended that wage disputes and racial disputes
should not receive the same treatment.

Wages and hours are at the heart of the collective-
bargaining process. They are more akin to collective

7a

rights than to individual rights, and are more suitable to
the arbitral process than Title VII rights. Gardner-
Denver says, 94 S.Ct. at 1024, that ‘‘the specialized com-
petence of arbitrators pertains primarily to the law of the
shop, not the law of the land,’’ and that ‘judicial con-
struction has proven expecially necessary with respect to
Title VIT, whose broad language frequently can be given
meaning only by reference to public law concepts.”? We
are concerned with rate of pay, an issue which does not
require, or lend itself to, publie law considerations, The
added fear expressed in Gardner-Denver that harmony
between a union and an individual cannot be presumed
“‘where a ciaim of racial discrimination is made,’’ 94 S.Ct.
at 1024 n. 19, hes no pertinence here. One of the highest
objectives of any union is to get all the money possible
for all of its members. Significantly, 58 other employees
have joined as plaintiffs.

In Gardner-Denver the Court reasserted the federal
policy favoring arbitration of labor disputes. 94 S.Ct.
at 1018-1019 and particularly n. 6. This policy was offset
against that established by the Civil Rights Act of 1964.
Citing Newman vy. Piggie Park Mnterprises, Ine., 390 U.S.
4110, 402, the Court said that in the Civil Rights Act ‘‘Con-
gress indicated that it considered the policy against dis-
crimination to be of the ‘highest priority.’ ’’ The con-
clusion that the anti-diserimination policy rated higher
than that favoring arbitration of labor disputes was
determinative. We find nothing in any pertinent legisla-
tive history or court decision to indicate that Congress, by
the grant of a right to private suit under FLSA $ 16(b),
intended to establish a policy preference for the determina-
tion of a wage dispute in judicial rather than arbitral
proceedings. Indeed, the only policy expression of which
we are aware, that contained in the Portal-to-Portal Act, 29
U.S.C. § 251(b), is to the contrary.

8a

Industrial peace is important not only to employees and
employers but also to the public. The delineation of the
respective rights of employees and employers in collective-
bargaining contracts has helped to secure industrial peace.
Many of those contracts contain provisions which define as
contract rights the same rights as are granted by federal
statutes. Indeed, the wage provisions of FLSA may not
be waived by agreement. Brooklyn Savings Bank v.
O'Neil, 324 U.S. 697, 707, 5 WH Cases 232. In many
contracts the unions have foregone the right to strike and
management has accepted compulsory arbitration. See
Boys Markets, Ine. v. Retail Clerks Union, 398 U.S. 235,
247-248, 74 LRRM 2257. The ever-present disputes over
wages and hours are readily adaptable to arbitration. Re-
sort to judicial process after arbitration prolongs the con-
troversy and serves no good purpose when the arbitral and
judicial proecedings arise out of, and must be decided, on
the same factual background.

We hold that when a wage dispute is submitted to
arbitration in aceordance with a collective-bargaining
greement, the employees may not thereafter maintain an
FLSA §16(b) suit for recovery on the basis of the same
factual occurrence as that presented to the arbitrator:
We are convinced that the policy of Congress, recognized
by the Courts, favors the arbitration of disputes over wages
and hours in accordance with a collective-bargaining agree-
ment. The high priority which Congress has given to
protection against racial disermination has no application
to a dispute over rate of pay. The reassertion in a judicial
forum of the same wage claim determined in an appropriate
arbitration hinders rather than promotes industrial peace,
and should not be permitted.

Affirmed. Each party shall bear his own costs.

9a
APPENDIX B
Marcu Term—May 3, 1974

Before Tue Honoraste Jean S, Breirensters, Tur Hon-
ORABLE STANLEY N. Barnes,* and Ture HonoraBie James
KE. Barrerr, Circuit Judges.

No. 73-1166

Ricuarp R. Satrerwuirte, Jr., for himself and in behalf of
all other persons similarly situated, Plaintiff-A ppellant,

Vv.

Unitep Parcex Service, Ixc., an Ohio Corporation,
Defendant-A ppellee.

This cause came on to be heard on the record on appeal
from the United States District Court for the District of
Colorado, and was argued by counsel.

On consideration whereof, it is ordered that the judgment
of said court is Arrirmep. Kach Party Shall Bear His Own
Costs,

/s/ Howarp K. Puiuips
Howard K. Phillips
Clerk

* Of The Ninth Circuit, Sitting by Designation.

10a
APPENDIX C

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. C-3070

Ricuarp R. Satrerwuitet, JRr., for himself and in behalf of
all other persons similarly situated, Plaintiffs

Vv.

Unirep Parcet Service, Ixc., an Ohio Corporation,
Defendant

MEMORANDUM OPINION

Wixxer, Judge

This case has been submitted on an agreed factual rec-
ord. The present action was preceded by Delivery Drivers,
Warehousemen and Helpers, Loeal Union No. 435 v. United
Parcel Service, Inc., Civil Action No. C-3070 in this Court.
The complaint in that ease charged that United Parcel:

**.. reduced the compensation of its employees by the
device of charging against their wages the time spent dur-
ing their daily rest periods or ‘coffee breaks,’ contrary
to the long established practice and custom, and by such ae-
tion the defendant has deprived its employees of the com-
pensation to which they are entitled by virtue of the said
contract.”’

That complaint additionally pleaded an arbitration agree-
ment, and the union asked that defendant be ordered to ar-
bitrate the dispute. Cross motions for summary judgment
were filed, and on September 17, 1971, Judge Chilson
granted the Union’s motion for summary judgment and
ordered United to arbitrate. An arbitration was held be-

lla

fore Prof. George E. Bardwell, and in the arbitration pro-
ceeding the parties stipulated that one issue to be decided
by him was, ‘If the decision of the Arbitrator is in favor
of the Union, to what relief, if any, are the employees en-
titled.’’

Following a hearing, the arbitrator handed down a 28-
page award on February 18, 1972. He quoted the stipu-
lated issues, and he quoted from the overtime provisions
of the labor contract. He discussed the evidence, the con-
tentions of the parties and the briefs, and his award was:

‘* All employees in the bargaining unit as of the date of
this award are entitled to one-half hour pay for each day
worked from December 29, 1970 through September 15,
1971.”’

Thereafter, counsel for the parties filed a ‘‘Joint re-
quest for Supplemental Decision.’’ It asked that the arbi-
trator decide, inter~alia, the question:

‘*(a) Is the back pay award in the Arbitrator’s decision
of one-half (14) hour’s pay for the days actually worked
to be paid at straight time or at time and one-half (112) ?”’

Onee more, briefs were filed, and a hearing was held
which was followed by a 14-page supplemental award in
which it was held:

‘*Kach employee eligible to receive pay under this award
is entitled to one-half (4%) hour’s pay at straight time
rates for each day worked from Deeember 29, 1970 through
September 15, 1971.’

Being dissatisfied with the supplemental award, plain-
tiffs [whose rights were decided by the arbitrator in Civil
Action No. C-3070] filed this case, and they argue that the
arbitrator had no right or power to decide plaintiffs’ en-

pee eerie

12a

: titlement to overtime pay, and that under the Fair Labor
Standards Act, only a court of competent jurisdiction can
decide this question.

It is true that the arbitration had to do with interpreta-
tion of the contract in question, but, nevertheless, present
plaintiffs expressly requested the arbitrator to decide the
exact question they now want to litigate again in this court.
Plaintiffs say that the claims’ are different because one
claim is for contract interpretation while the other is for
statutory interpretation. An examination of the contract
shows that its provisions:are but a paraphrase of the Fair
Labor Standards Act on the requirement for overtime.
Under plaintiffs’ position, they could ask for an award
from the arbitrator which would be binding on the em-
ployer, but, say plaintiffs, it was a heads I win, tails you
lose situation. They say that they can secretly conceal
part of their case to insure a second chance if they lose.
We disagree. The issue submitted to the arbitrator was
not limited by its terms to contract interpretation. It
asked the direct question of the arbitrator as to whether the
employees were entitled to straight time or time and one-
half. He answered that they were entitled to straight time
only. Plaintiffs say that he was wrong as a matter of law,
but errors in law on the part of an arbitrator was not
grounds for voiding the award. In Western Oil Fields v.
Rathbun (1957) 10 Cir. 250 F.2d 69, it was said:

‘‘ Arbitrators are the final judges of both law and fact,
and an award will not be reviewed or set aside because of
a mistake of the arbitrator in either.”’

See, also, Raytheon Co. v. Rheem Mfg. Co. (1963) 9 Cir.
322 F.2d 173, Trailways of New England, Ine. v. Amalga-
mated Association ete, AFL-CIO Division (1965) 1 Cir.
393 F.2d 180, Marey Lee Mfg. Co. y. Cortley Fabries (1965)
2 Cir. 354 F.2d 42,

13a

As was said in Trailways of New England, supra, ‘‘ Ar-
bitrators, however, even as courts .. . have ‘jurisdiction’
to decide erroneously.’’

In Alexander v. Gardner-Denver (1971) D.C. Colo. 346
F. Supp. 1012, aff’d (1972) 466 F.2d 1209, this Court dis-
cussed its thinking concerning the finality of arbitration
awards. Much of what is there said is here applicable and
it need not be repeated, although that discussion and the
cases there quoted and cited are adopted by reference. One
question there decided by the arbitrator had to do with an
alleged violation of Alexander’s civil rights—a matter over
which federal district courts are given jurisdiction. This
Court held that the decision of the arbitrator was final.
The Tenth Cireuit affirmed. We believe this to be the law
in this Circuit.

ilere, the union was the party which sought the aid of
this Court in forcing arbitration. It participated in the
arbitration and it joined in a request that the arbitrator
decide whether the employees should receive straight time
pay or time and one-half. Whether the arbitrator was
right or whether he was wrong is not the question before
us. The question is, ‘‘Did the arbitrator have jurisdiction
to decide either rightly or wrongly?’’ He did.

It Is Orvenep that judgment enter in favor of defendant
and against the plaintiffs.

Dated at Denver, Colorado, this 22nd day of January,
1972.
Fred M. Winner
United States District Judge

Filed January 24, 1973.

l4a
JUDGMENT

Pursuant to and in accordance with the Mem
Opinion filed January 24, 1973, signed by The E
Fred M. Winner; it is

Orverep that the action and complaint hereir
hereby is dismissed, and that the Defendant shall
costs upon the filing of a bill of costs with the (
this Court.

Datep at Denver, Colorado, this 30th day of
1973.

For tre Court:
James R. Manspeaker, Clerk
United States District Court

Filed January 30, 1973.

|

RESPONDENTS |
BRIEF ,

LIBRARY. ¥ FILED

COURT, U. &
32UPREME . NOV 22 1974

iN THE

October Term, 1974.

No. 74-332.

RICHARD R. SATTERWHITE, JR., for Himself and on
Behalf of All Other Persons Similarly Situated,
Petitioner,

UNITED PARCEL SERVICE, INC.,
Respondent.

On Petition for a Writ of Certiorari to the United States
Court of Appeals for the Tenth Circuit.

BRIEF OF RESPONDENT IN OPPOSITION.

Bernarp G. Secau
JAMES D. Crawrorp
1719 Packard Building
Philadelphia, Pa. 19102
Attorneys for Respondent.
Brenna C. Kinney

Scunaper, Harrison, Secat & Lewis
Philadelphia, Pa. 19102

Peter H. Howie, Jr.

Houme Roserts & Owen
Denver, Colorado 80202

Of Counsel.

International Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711

Supreme Court of the Unitéd“States: <*

INDEX.

Page
SN HEU, pccbcciceneveceeecsavihenseerseces 1
EE SVs Sd asda sdb dS Sse s cds Seadcarbnscnscsnvanes 2
NE cob pce kerb esse venseecsenenccencndscesesoucs 6
SE ee ccccsthvckeavhaeensevenseeeacn 6

II. The Decision of the Court of Appeals Merely Affirms

the Strong Federal Policy Favoring Arbitration of

Labor Disputes and Therefore Is of No Great Sig-
PE Fai ce an eV ease CRS Ess chi adheGereetenn 8

A. Neither This Court's Decision in Alexander v.
Gardner-Denver Co. Nor the Language or Pur-
poses of the Fair Labor Standards Act Require an
Exception to the Policy Favoring Arbitration ... 10

B. The Award of the Arbitrator Contained No Find-
ing That Petitioner and His Class Had Performed
Work Subject to Compensation as Overtime Under
the Fair Labor Standards Act ................ 13

C. Where, as Here, the Union Demanded Arbitration
of the Overtime Pay Issue on Petitioner’s Behalf,
Petitioner Cannot Now Disclaim a Part of the
Arbitrator’s Award and Relitigate the Issue as an
PT Vcc ones teaceenabhesaeccekeas 17

SM EE a a ca EC os ay bs ke SGA Ses bbb ee bal 20

i TABLE OF CITATIONS.

Federal Cases: Page
Alexander vy. Gardner-Denver Co., 415 U. S. 36 (1974)

6, 7, 10, 11, 12, 13, 17, 19
Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235

ERED ebnedoceuvbvaakcdocennsstakaghseovcteseans 9, 10
Bracey v. Luray, 161 F. 2d 128 (4th Cir. 1947) ............ 14
Dallas Typographical Union No. 173 v. A. H. Belo Corp., 372

Pe 8 wt ee | errr Try ore rrr 19
Employees of the Dept. of Public Health & Welfare v. Dept. of

Public Health & Welfare, 411 U. S. 279 (1973) ........ 11
Gateway Coal Co. v. United Mine Workers, 414 U. S. 368

CE Cidsvevectibersebecdunsbewtsedcrweraneesdrs 10
Gulf States Telephone Co. v. Local 1692, Intl. Brotherhood of

Electrical Workers, 416 F. 2d 198 (5th Cir. 1969) ..... 19
Jarrard vy. Southeastern Shipbuilding Corporation, 163 F. 2d

de Oe Ser one ny ere 14
Keith v. Bensch d.b.a. Lake Shore Platers, 40 L. C. § 66,621

Ces ee Cc EE Reco cebiveseaveussscebacssevaeschs 14
Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400

EN aha ke CUE SGLs REEE NER ER CLARE RIED OrE EEL as Okee 12

Office of Supply, Govt. of Republic of South Korea v. New
York Navigation Co., 469 F. 2d 377 (2d Cir. 1972) .... 19
San Martine Compania de Navegazian v. Saquenay Terminal

ASG, Gee FU. BE: 7oe CO Ge. TORE) occicccnsccvcccees 19
Schulte v. Gangi, 328 U. S. 108 (1946) ................0.. 14
Textile Workers Union v. Lincoln Mills, 353 U. S. 448 (1957) 8
Truck Drivers Union vy. Ries & Co., 372 U. S. 517 (1963) .. 9
United Steelworkers of America v. American Manufacturing

ek PU © FON CII oc cs csiipecseccscsccssccas 8
United Steelworkers of America v. Enterprise Wheel & Car

Cs St Ble Os SP CUSED Sv ccnvevaccteccicarcans 8,9, 14

TABLE OF CITATIONS (Continued).

Federal Cases (Continued): Page
United Steelworkers of America v. Warrior & Gulf Co., 363

Sy ROE ak eaWensbeesauscbsencisaecencuned 8, 9, 18
Urbino v. Puerto Rico Ry. Light & Power Co., 164 F. 2d 12

CRee Ml PER: oe neduncUsdeupcerasbhsekeuetaseaseas 14
U. S. Bulk Carriers Inc. v. Arguelles, 400 U. S. 351 (1971) .. 17
Washington-Baltimore Newspaper Guild, Local 35 v. Washing-

ton Post Co., 442 F. 2d 1234 (D. C. Cir. 1971) ........ 19
Statutes: Page
Fair Labor Standards Act:

NE, FURSC ER ae Ge Ge Ge BUMPED cc ctcascscversss 2,6

a es ae Ge Os Ss ED es dnkbbeesreondeses 2,7, 11
Labor Management Relations Act, Sec. 203(d), 29 U. S. C.

BE SAGAN eVded seehiensbuabsasecsenbpedasivneceens 9

BRIEF FOR RESPONDENTS IN OPPOSITION.

QUESTION PRESENTED.

Was not the court of appeals correct in holding that
when a wage dispute has been submitted to union-demanded
binding arbitration in accordance with a collective bargain-
ing agreement, and, pursuant to the arbitrator’s award,
back pay has been paid by the employer and accepted by
the employees, the employees may not thereafter maintain a
Fair Labor Standards Act § 16(b) suit to recover additional
back pay arising from the same factual occurrence as that
presented to the arbitrator?

2 Stat« ment

STATEMENT.

Petitioner seeks certiorari to have this Court review
the decision of the United States Court of Appeals for the
Tenth Circuit affirming the order of the United States Dis-
trict Court for the District of Colorado which granted
judgment for the employer, ‘respondent United Parcel
Service, cn a claim under Section 16(b) of the Fair Labor
Standards Act of 1938 (‘‘Wage and Hour Law’’ or

‘‘FLSA’’), 52 Stat. 1060, 29 U. S. C. $4 201-19, to recover
overtime compensation allegedly due under Section 7(a) (1)
, of that Act. The action was brought by petitioner Satter-
white, an employee of respondent, on behalf of himself and
58 other employees who filed consents to become parties
plaintiff pursuant to Section 16( " of the Wage-Hour Law
(R. 22a-24a).?
Petitioner’s complaint was ititiael by the district
court on January 30, 1973, pursuant to respondent’s motion
_ for summary judgment (R. 24a-26a), on the ground that the
. suit was foreclosed by prior submission by joint request of
the parties of the same claim to final and binding arbitra-
, tion under the grievance procedure of a collective bargain-
4 ing agreement (App. 10a-14a; R. 108a-11la). The court of
_ appeals affirmed, holding that ‘‘when a wage dispute is
_ submitted to arbitration in accordance with a collective
_| bargaining agreement, the employees may not thereafter
} maintain an FLSA § 16(b) suit for recovery on the basis of
| the same factual occurrence as that presented to the arbi-
trator.’’ (App. 8a).
; This case arises out of a dispute between an employer
H and a union over the rearrangement of employees’ daily
;

Pr coment GP al SR

whe yak A ee

work schedule. Petitioner and his class are members of the
Delivery Drivers, Warehousemen and Helpers Local Union

1. “R” references are to the Joint Appendix in the court of
appeals: “App.” to the appendices to the Petition for Certiorari.

Statement 3

No. 435 which at all relevant times herein had a valid col-
lective bargaining agreement with respondent (App. 2a).
Before December 29, 1970, employees reported to work at
8:00 a.m., received a thirty-minute unpaid lunch break and
worked until 4:30 p.m., for which services they were paid
eight hours pay per day or forty hours per week. They
were permitted two paid fifteen minute coffee breaks (R.
35a).

After December 29, 1970, respondent restructured the
work day by increasing the unpaid lunch break to one hour,
eliminating the two coffee breaks and making the hours
8:00 a.m. to 5:00 p.m. Employees who were truck drivers
did not have a scheduled lunch period, but rather one hour
of unpaid ‘‘personal time’’ which they could take in one or
more segments at each employee’s discretion as circum-
stances permitted. The employees continued to be paid
eight hours pay per day or forty hours per week (R. 35a).
Thus, the crux of the dispute was the change from a prac-
tice under which employees received eight hours pay but
actually worked 714 hours to one under which the same em-
ployees were required to spend the full eight paid hours
working.

After this change, several employees, including peti-
tioner (R. 43a), filed grievances against respondent, alleg-
ing that the elimination of the coffee break as paid time was
a violation of the labor agreement which was in effect
throughout the period in question (R. 39a-43a). Respond-
ent’s action to reschedule the work day to provide for
a full eight hours of work during the day and to increase
the unpaid lunch time was based on the fact that the contract
was silent on the subject of coffee breaks and contained an
‘entire agreement’’ clause which provided that the union
‘‘agrees that this Agreement is intended to cover all matters
affecting wages, bours and other terms and all conditions of

SCPE MANN MEP! on!

4 Stat« ment

employment’’ (R. 99a) and a limited arbitration clause
(R. 95a-97a). Therefore, respondent took the position that
the elimination of paid coffee breaks was not a proper sub-
ject for grievance or arbitration because the right to coffee
breaks was not set forth in the contract.

The union then filed suit in the United States District
Court for the District of Colorado to compel arbitration of
the matter, alleging that it had pursued to exhaustion the
grievance filed by petitioner and his fellow employees and
that respondent had refused to arbitrate the dispute (R.
27a-28a). The parties filed cross motions for summary
judgments (R. 30a-33a), and the district court per the
Honorable Olin Hatfield Chilson ordered respondent to
arbitrate the issue in September, 1971 (R. 34a); Delivery
Drivers, Warehousemen and Helpers, Local Union No. 435
v. United Parcel Service, Inc., No. 3070, in the United States
District Court for the Distriet of Colorado.

Pursuant to the order, arbitration was held before
Professor George E. Bardwell on November 23, 1971, at
which petitioner Satterwhite and five of the other plaintiffs
in the district court appeared as witnesses for the union
(R. 45a). The parties stipulated to the arbitrator the issues
involved in the dispute. Among these were: (1) ‘‘If the
Union did not acquiesce in the Company’s action [modify-
ing the work schedule], did the Company have the right to
take such action?’’ and (2) ‘‘If the decision of the Arbi-
trator is in favor of the union, to what relief, if any, are
the employees entitled?’’ (R. 45a-46a). The arbitrator
issued a comprehensive 28-page written opinion which held
that respondent could not unilaterally eliminate the paid
coffee breaks, and ruled that the employees were entitled to
back pay equal to one-half hour pay for each day worked
during the pertinent period from December 29, 1970, when
the schedule change took effect, to September 15, 1971, the
date of expiration of the labor contract (R. 45a-68a).

Statement 5

Because the labor contract between the union and re-
spondent provided for compensation at one and one-half
times the straight hourly rate for work in excess of forty
hours per week or eight hours per day, each exclusive of
lunch periods (R. 89a), the union contended that the back
pay awarded should be computed on a time and one-half
basis rather than as straight time. To resolve this second
dispute the parties agreed to submit to the arbitrator a
written joint request for a supplemental decision on
whether the award should be paid at straight time or at
time and one-half (R. 69a-70a). Briefs were again filed and
a hearing was held. In a second, carefully considered 14-
page written opinion (R. 70a-81a), the arbitrator ruled that
‘‘(E]Jach employee eligible to receive pay under this award
is entitled to one-half hour’s pay at straight time rates for
each day worked from December 29, 1970 through Septem-
ber 15, 1971’’ (R 76a).

Respondent then paid the award and the eligible em-
ployees, including petitioner and the other named plaintiffs
in the class action, received the back pay (App. 3a). How-
ever, having failed to achieve all of the desired award from
the arbitrator, petitioner Satterwhite and the other named
members of the class then turned to federal district court
and began the instant lawsuit, with the results set forth
above.

4
}
i

6 Argument

ARGUMENT.
I. Introduction.

Petitioner would have this Court believe that the de-
cision of the court of appeals raises questions of paramount
importance involving the denial of employees’ Fair Labor
Standards Act rights and directly contradicts the Court’s
decision in Alexander v. Gardner-Denver Co., 415 U.S. 36
(1974). This is not so. Despite petitioner’s attempt to
posture this case as an infringement on employees’ stat-
utorily guaranteed right to time and one-half for overtime
in excess of forty hours,’ it is merely a standard labor-
management dispute over the method in which employees’
work schedules were rearranged. What is not standard is
the attempt of petitioner and other employees on whose
behalf the union had successfully prosecuted grievances
through arbitration to invoke the FLSA to supplement an
arbitrator’s generous back pay award. And petitioner and
his class seek to avoid the policy favoring finality of arbi-
tration awards by equating this essentially collective de-
mand for more money with an individual employee’s right
to protection from discrimination under Title VII of the
Civil Rights Act of 1964.

The union objected—through grievances of petitioner
and others—to respondent’s unilateral changes in em-
ployees’ working hours and went to court to force arbitra-
tion of the dispute. The union suceceded in compelling
arbitration and thereafter obtained a favorable decision and
a generous back pay award for employees in the bargaining
unit. However, the union wanted still more and returned
to the arbitrator with the request, inter alia, that back pay
be computed at time and one-half rather than straight time.
The union lost on that issue—not surprisingly, since the

2. Fair Labor Standards Act, Section 7(a)(1), 29 U. S. C.
§ 207(a) (1).

Argument 7

actual work day never exceeded eight hours—and now,
through the device of an employee’s Section 16(b) suit
under the FLSA brought by an original grievant asks the
federal courts to increase the arbitrator’s award.

Both courts below properly refused to tamper with
the arbitrator’s award on the pretext of an alleged wage
and hour law violation, and their decisions fully comport
with the strong federal policy favoring final and binding
arbitration of labor disputes. The court of appeals care-
fully considered and properly distinguished this Court’s
decision in Alexander v. Gardner-Denver Co., 415 U. S. 36
(1974).

Moreover, petitioner's basic contention that he and his
class should be entitled to ‘‘another bite at the apple’’ when-
ever an arbitrator’s award arguably conflicts with or could
be supplemented by a federal statute would enmesh the
federal judiciary in review of large numbers of arbitration
awards ordered by skilled arbitrators within the areas of
their expertise. This disrespect for the finality of arbi-
trators’ awards (except in the unique area of discrimina-
tion in violation of Title VII where the Congress plainly
recognized the danger that unions would not protect indi-
vidual members from discriminatory actions of employers—
or, indeed, of the unions themselves) would, under any cir-
cumstances, violate the basic principles favoring labor arbi-
tration set down by this Court. This is even clearer
here, where (1) petitioner’s union had demanded arbi-
tration of the grievance filed by petitioner and his fellow
grievants to the extent of obtaining a court order to compel
it, (2) the very issue of whether back pay for petitioner and
his fellow grievants should be at straight time or time and
one-half rates had been submitted to the arbitrator by
agreement of the union which was prosecuting petitioner's
claim and (3) the right of petitioner and his fellow griev-
ants to recover depended upon the willingness of the federal

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8 Argument

courts to hold that they must follow so much of the
arbitrator’s award as held that each employee was entitled
to one-half hour back pay for each day worked (under the
union interpretation, a finding that the additional half
hour was within the working day for FLSA purposes) and
might disregard the remainder of the same award which
set the rate at which this additional half hour per work day
should be paid.

In fact, the arbitrator here, like a jury, weighed the
relative merits of the union’s claim on behalf of petitioner
and his fellow grievants against the defense presented by
respondent and determined that petitioner and each of his
fellow employees was entitled to damages equal to one-half
hours’ pay for each day worked after respondent had
altered the work schedule. But the fact that the arbitrator
determined that each employee was entitled to the damages
he thought appropriate is simply not the equivalent of a
finding that each employee had worked additional hours
beyond the eight-hour day for Fair Labor Standards Act
purposes.

II. The Decision of the Court of Appeals Merely Reaffirms
the Strong Federal Policy Favoring Arbitration of
Labor Disputes and Therefore Is of No Great Signifi-
cance.

In affirming the district court’s dismissal of petitioner’s
complaint, the court of appeals properly applied the estab-
lished doctrine of federal labor relations law favoring
arbitration of labor disputes, as enunciated by this Court
in Textile Workers Union v. Lincoln Mills, 353 U. S. 448
(1957) and the Steelworkers trilogy.* As the Court stated

3. United Steelworkers of America v. American Manufac-
turing Co., 363 U. S. 564 (1960) ; United Steelworkers of America
v. Warrior & Gulf Co., 363 U. S. 574 (1960); United Steel-

workers of America v. Enterprise Wheel & Car Corp., 363 U. S.
593 (1960).

Argument 9

in Boys Markets, Inc. v. Retail Clerks Union, 398 U. S. 235, —
243 (1970), the Steelworkers cases “emphasized the impor-
tance of arbitration as an instrument of federal policy for
resolving disputes between labor and management and
cautioned the lower courts against usurping the functions
of the arbitrator.”

Repeatedly, this Court has warned against judicial re-
view of arbitration awards and has advised lower courts
to view with suspicion attempts to entangle them in re- —
weighing the merits of a grievance.* In addition to this
established judicial policy, Congress has also indicated its
preference for final adjustment of labor-management dis-
putes through voluntary arbitration: ‘‘Final adjustment by
a method agreed upon by the parties is hereby declared to
be the desirable method for settlement of grievance dis-
putes arising over the application or interpretation of an
existing collective bargaining agreement.’’ Section 203(d),
Taft-Hartley Act.

Petitioner seeks to avoid the policy favoring arbitra-
tion by arguing that he has a statutory right under the
Fair Labor Standards Act totally independent of an arbi-
tration award. But no such right to avoid the effect of
final and binding arbitration exists in the law. And the
facts in this case cogently illustrate the reason why the
pelicy exists. For petitioner would have this Court enforce

4. In Steelworkers v. Enterprise Corp., supra, 363 U. S. at
596, the Court stated: “The refusal of courts to review the merits
of an arbitration award is the proper approach to arbitration
under collective bargaining agreements. The federal policy of
settling labor disputes by arbitration would be undermined if
courts had the final say on the merits of the awards.” See also
Truck Drivers Union v. Ries & Co., 372 U. S. 517, 519 (1963).
In Steelworkers v. Warrior & Gulf Co., supra, 363 U. S. at 585,
the Court cautioned: “. . . the court should view with suspicion
an attempt to persuade it to become entangled in the construc-
tion of the substantive provisions of a labor agreement, even
through the back door of interpreting the arbitration clause.
when the alternative is to utilize the services of an arbitrator.”

VAR LATE

10 Argument

a portion of the arbitrator’s award and then, on the basis
of that portion, reverse the remainder of the award. Re-
litigation of issues in this fashion can hardly be a source of
industrial peace.

A. Neither This Court’s Decision in Alexander v.
Gardner-Denver Co. Nor the Language or Pur-
poses of the Fair Labor Standards Act Require an
Exception to the Policy Favoring Arbitration.

In an attempt to circumvent the strong policy against
judicial review of the merits of an arbitration award, peti-
tioner seeks to enter the courthouse through the back door,
by alleging he is entitled to a larger remedy under the
FLSA than was awarded by the arbitrator. He argues
that the arbitrator’s award directly contradicts the Fair
Labor Standards Act; but the real basis of his claim is that
suit under the Act might offer the possibility of a ‘‘ better
deal.’’

This is not the first time a petitioner has sought review
in this Court by contending that federal policy favoring
final and binding arbitration cor‘icts with another federal
statute. This Court, however, has repeatedly resolved
potential statutory conflicts in favor of strengthening the
arbitration process. In Boys Market v. Retail Clerks Union,
supra, for example, the Court concluded that the policy
favoring arbitration is so important that the literal terms
of Section 4 of the Norris-LaGuardia Act must be accom-
modated to it. Most recently, in Gateway Coal Co. v. United
Mine Workers, 414 U.S. 368 (1974), the Court extended the
“presumption of arbitrability” to safety disputes, despite
arguments that federal safety legislation removed such dis-
putes from the arbitration arena.

Petitioner argues, however, that Alexander v. Gardner-
Denver Co., 415 U. S. 36 (1974), creates an exception to the
hasie policy favoring arbitration of disputes and that that

Argument 11

exception applies in the present case. In fact, this Court’s
decision in Gardner-Denver recognized the federal policy
favoring binding arbitration of labor disputes but carved
out a narrow exception to the general rule when individual
employees sought to assert statutory rights under Title VII
of the Civil Rights Act of 1964. Petitioners now seek to
expand that narrow exception to cover private suits over
wage disputes under FLSA 4 16(b).

The decision in Gardner-Denver specifically limited the
exception to Title VII rights and clearly enunciated the
reasons for viewing Title VII rights dific.-ntly from other
contractual or collective bargaining rights. Similarity, the
court of appeals carefully compared the legislative history
and policies behind Title VII as set forth by this Court with
those of the Fair Labor Standards Act, and detailed the
ways individual statutory rights sought to be asserted in
Gardner-Denver are separate and distinct from the rights
arising out of a wage dispute.

The whole tenor of this case is different from Gardner-
Denver. There, an individual employee pursued an indi-
vidual grievance, and the Court recognized that a harmony
of interest between union and grievant cannot always be
presumed in discrimination eases. However, here the issue
is not individual but colleetive—the union sought at arbi-
tration and seeks now through this suit as much money as it
can possibly attain for all members of the bargaining unit.
The union’s interest is inseparable from the interests of em-
ployees in the hargaining unit.

In Gardner-Denver the Court emphasized the signif-
icant role private individuals play in the enforcement of
Title VII rights. By contrast, as the court of appeals prop-
erly pointed out, this Court has said, “private enforcement
of the FLSA was not a paramount objective.”*> In Gardner-

5. Employees of the Dept. of Public Health and Welfare v.
Dept. of Public Health & Welfare, 411 U. S. 279, 226 (1973).

a
4

12 Argument

Denver, the Court referred to the Congressional intention
that the policy against discrimination be of “the highest
priority.”*® Here, the court of appeals reviewed the legis-
lative history of the FLSA and found no congressional
policy preference for the determination of wage disputes in
judicial rather than arbitral proceedings (App. 8a):

We are convinced that the policy of Congress recog-
nized by the Courts, favors the arbitration of disputes
over wages and hours in accordance with a collective
bargaining agreement. The high priority which Con-
gress has given to protection against racial discrim-
ination has no application to a dispute over rate of
pay.

In Gardner-Denver the (‘ourt found a legislative intent
in Title VII to provide non-exclusive access to various
forums—state human relations commissions, EEOC and the
courts, for example. By contrast, arbitration has always
heen favored in true labor cases and the Portal to Portal
Act of 1947, 29 U. S. C. §251(b), is an example of Con-
gressional policy to limit the jurisdiction of the courts in
Fair Labor Standards Act cases.

In Gardner-Denver, the contract provisions which the
arbitrator construed were in no sense the equivalent of the
protections contained in Title VII. Here the agreement
provides for overtime pay as fully as does the Fair Labor
Standards Act. And in Gardner-Denver the rights which
the plaintiff sought to enforce required both extensive fact
finding and the existence of a fact-finder sympathetic to
civil rights, reasons that have frequently caused the Con-
gress to grant access to the federal courts. In this case,
the right to overtime pay requires neither extensive factual

6. Alexander v. Gardner-Denver, 415 U. S. at 47, citing
Newman v. Piggie Park Enterprises, Inc., 390 U. S. 400, 402
(1968).

Argument 13

determinations nor a forum more sympathetic than an im-
partial arbitrator.

In Gardner-Denver, the arbitrator made no reference
to the grievant’s claim of racial discrimination in upholding
the discharge. In the instant case, the arbitrator gave ex-
plicit consideration to the claim for overtime, rejecting it
with full opinion after granting petitioner and his fellow
employees an award which was paid by the employer and
accepted by the employees. And petitioner has not come to
court to seek to have the arbitration award vacated on the
grounds the arbitrator exceeded the scope of his authority.
Rather, he seeks to retain all of the original arbitration
award and supplement it through this action. (Indeed he
depends upon that award as the basis for his action to over-
turn its remedy.)

Under these cireumstances, the court of appeals was
plainly correct in concluding that neither the direct lan-
guage of the Fair Labor Standards Act nor the decision of
this Court in Gardner-Denver provided any basis for a
determination that petitioner might relitigate an issue
which had already been presented to and decided by the
impartial arbitrator.

B. The Award of the Arbitrator Contained No Finding
That Petitioner and His Class Had Performed
Work Subject to Compensation as Overtime Under
the Fair Labor Standards Act.

If petitioner’s argument that, as a matter of law, FLSA
overtime pay claims cannot be barred by arbitration is a
tenuous one, his argument that the arbitrator had resolved
the factual issues in his favor is based on even more flimsy
assumptions. He has interpreted the arbitrator’s back pay
award as the equivalent of a finding that each employee
actually worked 8% hours a day or 42% hours a week.
Yet there is nothing in the arbitrator’s decision which in-

POPE we Pos

14 Argument

dicates that he considered half of each lunch hour as work-
ing time. The award merely states that employees were to
be awarded an amount of money which was to be measured
by both the number of days they worked and one-half their
hourly rate of pay.

Many varying factual interpretations can be drawn
from the lump sum back pay award, and this Court has
recognized that “[{a]rbitrators have no obligation to the
Court to give their reasons for an award.” United Steel-
workers of America v. Enterprise Wheel & Car Corp., supra,
363 U.S. at 598. Would the award have been less subject to
collateral attack, for example, if the arbitrator awarded the
same amount but characterized the award as two-thirds of
the added unpaid lunch period at time and one half? An
arbitrator’s award is necessarily a whole remedy, the
product of many factors weighed and evaluated by him.
Yet petitioner has dissected the award and grossly dis-
torted it by accepting part (the number of hours for which
back pay was awarded) while seeking to relitigate the rate
issue.

Petitioner also claims that the award represented a
compromise of coverage under the wage and hour law which
is prohibited by Schulte v. Gangi, 328 U. S. 108 (1946).’

7. In Schulte v. Gangi the court was concerned with com-
promise of controversies over coverage under the Fair Labor
Standards Act. not with a factual question as to the number of
overtime hours worked. Indeed. the Court specifically declined
to rule out the possibility of compromises in such disputes:
“Nor do we need to consider here the possibility of compromises
in other situations which may arise, such as a dispute over the
number of hours worked... .” (328 U. S. at 114. 115). More-
over, although petitioner strongly argues that the arbitrator's
award was somehow impermissibie as a compromise under the
FLSA, courts have upheid compromise settlements of overtime
claims. See Jarrard vy. Southeastern Shipbuilding Corporation,
163 F. 2d 960 (3th Cir. 1947) : Urbino v. Puerto Rico Ry. Light
& Power Co., 164 F. 2d 12 (1st Cir. 1947) ; Keith v. Bersch d.b.a.

Lake Shore Platers, 40 L. C. § 66,621 (N. D. Ill. 1960); Bracey
v. Luray, 161 F. 2d 128 (4th Cir. 1947).

|
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A: yument 15

Again this argument makes the factual assumption that the
number of back pay hours awarded by the arbitrator can
be separated from the rate applied to those hours. The
award was made as a whole, and there is no factual basis
for subsequently severing the award of the arbitrator as to
hours used as a measure of compensation from the rate of
pay for those hours. Neither this’ Court nor the lower
courts can state with any factual certainty what the arbi-
trator’s flexible remedy would have been had the arbitrator
determined that a time and one-half rate should be multi-
plied by the number of hours for which back pay was al-
lowed to arrive at defendant’s total liability—or had the
arbitrator known that a court might make such a deter-
mination.®

In this respect, it is important to note that the arbi-
trator’s decision in this case did not base the back pay
award on the number of hours worked each day by an em-
ployee, but related it only to the total days worked: ‘‘For
purposes of this award ‘day worked’ shall mean any day
on which the eligible employee reported for work and re-
ceived compensation for his services.’’ (R. 76a). Thus, it
cannot be ascertained whether the back pay awarded bore
any relation whatsoever to overtime in the case of individ-
ual employees. .

Most important, the overtime provisions of the Wage
and Hour Law are not violated by a work schedule from
8:00 a.m. to 5:00 p.m. with an unpaid lunch period of one
hour, precisely the schedule established by respondent. If
for example, the union had agreed, in negotiations, to such
a work schedule, there would be no question of an FLSA
violation. However, the company lost at the original arbi-
tration because it unilaterally changed the work schedule.

8. The existence of this factual doubt as to precisely what

the award meant lends further support to the ‘federal policy of
not reviewing the merits of arbitration awards.

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16 Argument

The arbitrator sustained the union objection to the em-
ployer’s method of rescheduling employees’ workdays and
awarded back pay to compensate for this contract violation.
‘Like many back pay awards, the remedy was an attempt
to rectify a contract violation, not to compensate employees
for time actually worked. In this sense, then, the back pay

‘award is a fiction unrelated to actual overtime, for there is

no question that the employees only performed work forty
hours per week during thé relevant period. Respondent
did not pay for having forced its employees to work over-
time, which it did not do; it paid for its error in unilaterally
eliminating’ the coffee breaks and increasing the lunch
period. Only after these damages had been paid’ did peti-
tioner take the fictional back pay hours awarded by the
arbitrator, add them to the forty hours actually worked and
thereby assert a wage and hour law overtime violation.

It is undisputed that the arbitrator found that re-
spondent had violated the labor agreement with petitioner’s
union when it unilaterally eliminated two paid coffee breaks
and substituted an equal amount of unpaid lunch time in
the work schedule (R. 67a). It is equally clear that the
arbitrator had before him the contract provisions which
required time and one-half pay for overtime in excess of
forty hours per week or eight hours per day (R. 46a). The
arbitrator was aware of the fact that the overtime pro-
vision made a specific exception for ‘‘lunch periods.’’ (Id.).
From these facts, it is simply impossible for a court to
determine that the arbitrator’s award allowing back-pay
damages to petitioner and his fellow grievants was based
on a determination by the arbitrator not merely that re-
spondent had violated the agreement in unilaterally rear-
ranging the work schedule, but that employees under the
rearranged schedule had worked an stead seed day or a 421%
hour week.

ait

Argument 17

C. Where, as Here, the Union Demanded Arbitration
of the Overtime Pay Issue on Petitioner’s Behalf,
Petitioner Cannot Now Disclaim a Part of Arbi-
trator’s Award and Relitigate the Issue as an
FLSA Claim.

The union throughout all stages of the initial court
proceedings to compel arbitration, the arbitration itself,
and the supplemental arbitration vigorously espoused the
position that overtime pay is an arbitrable issue. The ecurt
of appeals properly concluded that the strong judicial and
congressional policy favoring final resolution of disputes
through arbitration would be severely weakened if the
union were permitted—through the artifice of a class action
brought by one of its inembers—to disavow a portion of the
results of the arbitration it initiated simply because it now
seeks more than the arbitrator awarded.

In Alexander v. Gardner-Denver, 45 U. S. 36, 49 n. 10-
(1974), this Court indicated it was not primarily concerned
with the labels applied to various traditional legal and
equitable doctrines of estoppel, election of remedies, waiver,
or res judicata, in balancing the statutory right of access
to the courts under Title VII against the policy favoring
binding arbitration. Rath.~, the Court’s concern was with
the basie public policies behind Title VII and with funda-
mental concepts of fairness and due process. Accordingly,
rather than pursue a detailed legalistic discussion of these
procedural concepts we will concentrate on the basic notion
of fairness in the context of this case.

Petiticner contends that the issue here is one of direct
access to the courts to enforce statutory rights, citing U. 8.
Bulk Carriers, Inc. v. Arguelles, 400 U. S. 351 ( 1971), and
other cases in support of his position (Petition for Certi-
orari, p. 13). However, those cases dealt with a very dif-
ferent question, the right of an employee to bypass the

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18 Argument

contractual grievance and arbitration procedure and sue
initially in federal court. The Court’s holding in those
cases afforded the employee the right to choose which path
to follow, either the arbitration or statutory remedy.

Here, petitioner does not seek the right to elect rem-
edies or choose between forums. He chose arbitration and
now asks this Court to overturn the decades of decisions
favoring final and binding arbitration of labor disputes and
to establish a new right applicable only to the employee--
the right of successive remedies.

Moreover, petitioner’s claim of a right of direct accesr
to the courts is belied by the record. Any claim petitioner
has is derived from and based upon the arbitrator's de-
cision.” Only after petitioner and his fellow grievants had
obtained what he interprets as the favorable arbitrator’s
decision on the hours for which back pay should be awarded
could they seriously maintain this additional claim under
the FLSA for overtime rates. They have used the portion
of the arbitrator’s decision favorable to them as a bootstrap
to pull themselves within the purview of the Wage and
Hour Law and thereby obtain federal court jurisdiction.”

9. Petitioner's contention that his rights under the FLSA
“are in ne way dependent upon or derived from a collective
bargaining agreement” (Petition for Certiorari, p. 14) lacks
substance. Certainly, coffee breaks are not granted by law;
they are either granted or withheld, and paid or unpaid pursuant
to specific terms in the labor agreement, or based upon past
pattern and practice in the shop. It is difficult to envision a
subject more closely linked to the “law of the shop” and there-
fore within the specialized competence of arbitrators” than coffee
breaks. See United Steelworkers of America v. Warrior & Gulf
Navigation Co., supra, 363 U. S. at 581, 583.

10. Even if the arbitrator had erred—and it seems clear that
he did not err—that fact alone is not enough to require that the
courts provide an additional forum in which petitioner and his
fellow grievants may relitigate the overtime pay issue. The
judicial scope of review of arbitration awards is extremely nar-
row. Even an error on the part of the arbitrator in his inter-
pretation of the law is not a ground for setting aside an award.

Argument 19

Acceptance of petitioner’s arguments would result in
the fundamentally unfair and untenable position that com-
pulsory labor arbitration would only bind the employer.
If an employee or union has failed to obtain all that was
sought at arbitration, he or it could have a “second bite
at the apple’’ merely by recasting the dispute in terms of
some federal statute. Increasingly, rights afforded by fed-
eral statutes duplicate contractual rights—in wages, hours,
occupational health and safety, discrimination, pension,
health and welfare. If Gardner-Denver applies to this and
every case in which a grievant can find a statutory claim to
parallel his contractual claim, it has rendered the arbitra-
tion clause in labor agreements virtually meaningless, de-
spite the strong federal policy favoring final and binding
arbitration of labor disputes.

Petitioner contends he should have the right to hold
the federal law claim in reserve and force arbitration of
the contractual right. If he had been totally successful at
arbitration, he could have pled finality of an arbitration
award to any subsequent challenge by respondent. Since,
however, he failed to achieve all he asked for, he now claims
the right to disregard so much of the arbitrator’s award as
displeases him and relitigate that part of the case in court.

10. (Cont’d.)

Office of Supply, Govt. of Republic of South Korea v. New York
Navigation Co, 469 F. 2d 377, 379 (2d Cir. 1972): see also San
Martine Compania de Navegazian v. Saquenay Terminal Ltd.,
293 F. 2d 796, 801 (9th Cir. 1961).

Many courts have enunciated the principle that an arbitra-
tion award will not be reviewed on the merits or vacated “even
though the arbitrator may have made, in the eyes of judges,
errors of fact and law unless .. . [the award] compels the
violation of law or conduct contrary to accepted public policy.”
Washington-Baltimore Newspaper Guild, Local 35 v. Washing-
ton Post Co., 442 F. 2d 1234, 1239 (D. C. Cir. 1971): see Gulf
States Telephone Co. v. Local 1692, International Brotherhood
of Electrical Workers, 416 F. 2d 198, 201 (5th Cir. 1969) ; Dallas
Typographical Union No. 173 v. A. H. Belo Corp., 372 F. 24
577, 581 (5th Cir. 1967).

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20 Conclusion

But the arbitrator’s award is a single award which deserves
the respect to which labor arbitration awards are entitled.

Respondent's position is contrary to the well established
principle favoring arbitration of labor disputes. The de-
cision of the court of appeals so clearly sets forth these
long-standing principles rejecting petitioner’s novel conten-
tion, that it does not merit review by this Court.

CONCLUSION.

For the foregoing reasons, the petition for a writ of
certiorari to the United States Court of Appeals for the
Tenth Cireuit should be denied.

Respectfully submitted,

Berxarp G. Secau
James D. Crawrorp
1719 Packard Building
Philadelphia, Pa. 19102
Attorneys for Respondent.

Brenna C. Kinsey

Scunaper, Harrison,
Seca. & Lewis

Philadelphia, Pa. 19102

Peter H. Houme, Jr.

Hoime Roserts & Owen

Denver, Colorado 80202
Of Counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0546%3A2. Public record. Not legal advice.