Brief for the Respondent in Opposition — Thomas v. Ford Motor Motor Co (Nos. 74-1251, 74-1284)

SUBJECT INDEX

Pages

Table of Cases and Other Citations.............. ii

Question Presented for Review..................- 1

es Oe Oe Os ck ead cdecadsusawaeeuns 2-4

Argument:

The Decision Below is Correct; it is in Accord

With Decisions of This Court and Decisions of

Other Courts of Appeals; and The Decision Be-

low Presents No Important Question of Federal

Law Which Has Not Been Settled by This Court 4-8

Cee 5 ra setae cu ctedebeesorsctccceeesae 9

4 ppendix :

Portions of Rule 56(b), (c) and (e), FRCP.... B.1

Portions of Transcripts of August 13, 1973

Hearing and November 1, 1973 Conference.. B.3-.5

TABLE OF CASES

Page

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) 5,6

Baker v. California Land Title Co., 507 F. 2d 895

PE MER eteseccdcvshetuascanacetsn ede 6

Bellamy v. Mason’s Stores, Inc., 508 F. 2d 504 (4th

RE a Samebu ues GANGA kGAGh Wee eek ieaeunes

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953)....

Guerra v. Manchester Terminal Corp., 498 F. 2d 641

SUG UUs AOD Ak Ghd vue ecases Siete Kkedines aa 6

Humphrey v. Moore, 375 U.S. 335 (1964).......... 7

Patmon v. VanDorn Co., 498 F.2d 544 (6th Cir.

cn Aaa ee rae Bs Ur fry ree ee aa 6

Williams v. General Foods Corp., 492 F.2d 399 (7th

SG I i UL ah GENK SED SON Ce Eib cnews eho 6

Statutes, Court Rules and Miscellaneous Authorities

Civil Rights Act of 1964, Title VII; 42 USC $§2000e,

PN Sic ued nuh wean ose keke ah Fie maken Keus o's 2-6

Federal Rules of Civil Procedure, Rule 56..... 1, 4, 5, 7-9,

é B.1, .2, .6

Ford Motor Company-UAW Master Agreement of

December 7, 1970 and Local Agreements of De-

cember 21, 1970 and February 6 and March 4,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

a

No. 74-1251

Vv.

FORD MOTOR COMPANY, a Delaware Corporation, and

INTERNATIONAL UNION, UAW, a labor organization,

and LOCAL 600, UAW, a labor organization,

Respondents.

—-- >

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

a

BRIEF OF RESPONDENT UNIONS

IN OPPOSITION

a rs

QUESTION PRESENTED FOR REVIEW

When the District Court had plaintiff’s evidence before

it, and when defendants had submitted an Affidavit and

other material, was it proper for the Court of Appeals to

affirm the District Court’s Order granting defendants’ mo-

tions for summary judgment pursuant to Rule 56, FRCP?

STATEMENT OF THE CASE

Petitioner’s' statement omits relevant facts and proceed-

ings and includes certain erroneous facts and legal conclu-

sions.

The correct facts and proceedings are generally as stated

by the District Court (A .15-.18, .24-.26, .30)? and by the

Court of Appeals (A .1-.6, .8, .11-.14). The Unions shall

emphasize certain facts and proceedings which were

omitted or misstated by Petitioner.

Plaintiff, by his counsel, in Civil Action No. 39879, sued

Ford for breach of collective bargaining agreement and sued

the Unions for alleged unfair representation (A 1.7, .18).

Subsequently, in Civil Action No. 40129, plaintiff sued said

defendants for alleged civil rights violations and for the

Union’s alleged breach of duty of fair representation (A

18, .23).

Petitioner is white (A .13, .30). He complained about

discrimination against black employees (Ibid).

Plaintiff, by his counsel, admitted in District Court that

the crux of both of his Complaints was that said local

Agreements violated the Ford-UAW Master Agreement.

The lower Court also concluded that the alleged Contract

violation was the basis of both complaints (A .13).

1 Petitioner will hereinafter usually be referred to as “Thomas”

or as “plaintiff.” Respondent International Union, UAW, will usually

be referred to as the “International” or the “UAW;” Respondent Local

600 will usually be referred to as “Local 600” or as the “Local.” Said

Respondents may be referred to jointly as the “Union” or “Unions.”

Respondent Ford Motor Company will hereinafter usually be referred

to as “Ford” or the “Company.”

2 Citations to Petitioner’s Appendix will be in parenthesis, as

“(A —).” Citations to Respondent Union’s Appendix will be in

parenthesis, as “(B .—).”

3

Ford filed Answers and Affirmative Defenses, which at-

tached the December 7, 1970 Master Agreement (A .3; A.);

later Ford filed its Motion to Dismiss (A .3; A .16).

The Unions filed Motions to Dismiss and Briefs (A .3;

16). The Union’s Motion was partly based upon an Affi-

davit and attachments (A .3, .16).

After the Union’s Motion was filed, plaintiff’s attorney

filed a notice of taking the deposition of persons, including

Local Union members (A .14). Counsel for plaintiff and

the Unions agreed that the depositions would not be taken

and that any “discovery would wait until the judge rules

on our motions to dismiss the above cases.”’ (A .4, .5).

Plaintiff, by his attorney, filed Briefs and Answers to

defendants’ Motions (A .3). Neither plaintiff nor his at-

torney filed any affidavit or other sworn material in re-

sponse to the Union’s Affidavit and material (A .3). Plain-

tiff’s Answers almost entirely were legal conclusions deny-

ing defendants’ defenses. -

On June 25, 1973, there was a hearing on said Motions

before District Judge Feikens. During the argument,

plaintiff’s counsel informally urged that his complaint

stated a cause of action and suggested that discovery would

be appropriate (A .5). After argument by counsel for all

parties, the matter was adjourned so plaintiff’s lawyer

could examine records supporting Ford’s defenses (A .5).

A subsequent District Court hearing was held on August

13, 1973 (A .4; B .3-.5). Plaintiff’s counsel began that

hearing by stating that he had nothing further to present

to the Court on the Title VII action (B .4).

On November 1, 1973, Disrict Judge Feikens held a re-

corded conference in his Chambers (A .14). The Judge

advised counsel for all parties that he intended to treat

4

defendants’ Motions to Dismiss as Motions for Summary

Judgment, pursuant to Rule 56, FRCP (A .4; B .6). The

Judge asked counsel for all parties if they had any addi-

tional material to submit, prior to the Judge’s ruling upon

the Motions (A .4; B .5). Plaintiff’s lawyer twice stated

that plaintiff had “nothing else’’ to submit to the Court

(A .4; B .5, .6). He did not request discovery or ask that

the Court not yet decide the case (A .6).

On November 7, 1973, the District Judge issued his

Memorandum Opinion granting defendants’ Motions on

some of the grounds raised (A .15-.33).

Plaintiff appealed to the Court of Appeals for the Sixth

Circuit. The Court of Appeals affirmed the District Court’s

grant of defendants’ Motions for Summary Judgment.

Essentially, here, as in the Court of Appeals, plaintiff

asserts that the District Judge erred by granting summary

judgment for defendants, allegedly without allowing plain-

tiff an opportunity to get and submit evidence and without

a trial.

ARGUMENT

THE DECISION BELOW IS CORRECT; IT IS IN ACCORD

WITH DECISIONS OF THIS COURT AND DECISIONS OF

OTHER COURTS OF APPEALS; AND THE DECISION BE-

LOW PRESENTS NO IMPORTANT QUESTION OF FED-

ERAL LAW WHICH HAS NOT BEEN SETTLED BY THIS

COURT.

The lower Courts’ opinions were correct and were con-

sistent with the Federal Rules and with decisions of this

Court and of other Courts of Appeals.

No important Federal civil rights or labor question is

presented by this Petition.

5

In order to invoke this Court’s jurisdiction, Petitioner

argues that the lower court decisions conflict with this

Court’s decision in Alexan‘er v. Gardner-Den er Co., 415.

U.S. 36 (1974). Petitioner contends that Gardner-Denver

requires a Federal Court trial in civil rights cases and

precludes summary judgment in such cases.

Petitioner is wrong. Gardner-Denver does not support

Petitioner’s views. The decisions below do not conflict

with Gardner-Denver. This Court held, in Gardner-Den-

ver, that a contract arbitration award does not bar a

Federal Court’s consideration of claims under Title VII

of the 1964 Civil Rights Act. Plaintiff here had such con-

sideration by the District Court.

The District Court, though referring to a decision by

the independent Public Review Board’ and other material,

clearly did not feel bound by any prior decision (A .19,

.20-.33). Nor did the District Court merely judicially re-

view any prior decisions. It is clear that the District Court

directly considered all of the pleadings, the Affidavit and

all other materials which the parties presented and desired

to present. Judge Feikens’ lengthy opinion shows how

carefully he considered the case for himself, and concluded

for himself that there was not sufficient evidence on which

to base a claim of racial discrimination (A .28-.33). This

met the Gardner-Denver requirement of de novo considera-

tion (415 U.S. at 60).

Contrary to Petitioner’s argument, Gardner-Denver did

not nullify the use of summary judgments under Rule 56,

FRCP.

*The Public Review Board decision was admitted into evidence,

when it was attached to the Unions’ Affidavit (A .3; .17). In Gardner-

Denver, supra, this Court expressly stated that even an arbitration de-

cision may be admitted into evidence and accorded such weight as is

appropriate (415 U.S. at 60).

6

In other post-Gardner-Denver civil rights cases, Courts

of Appeals have affirmed dismissal of complaints without

a trial.‘ Petitioner has cited no Court of Appeals decision

which might conflict with the decisions of the lower Courts.

While Petitioner does not show how it justifies this

Court’s consideration, he argues that the lower Court

granted summary judgment without affording Petitioner

an “‘opportunity to adduce proofs.’”* The record does not

support Petitioner in that regard.

Plaintiff’s lawyer agreed with the undersigned counsel

that there should be no discovery until after the Judge

ruled on defendants’ motions (A .4, .5). This was done be-

cause, if the motions were granted, discovery would have

been a waste of time.

Furthermore, District Judge Feikens was extraordinarily

careful to give plaintiff and his lawyer every opportunity

to submit more material.

The first hearing on defendants’ motions was adjourned

so plaintiff’s lawyer could verify the information relied

upon by Ford and to give plaintiff’s lawyer an opportunity

to present additional evidence or argument (B .4). Ford’s

counsel gave plaintiff’s counsel additional material (A .5).

At the second hearing, plaintiff’s counsel stated: “At

this time, I have nothing additional to present to the Court

on the Title Vil action. . .”’ (B 4).

4 See, for example, Bellamy v. Mason’s Stores, Inc., 508 F. 2d

504, 505 (4th Cir. 1974); Baker v. California Land Title Co., 507 F. 2d

895 (9th Cir. 1974); Guerra v. Manchester Terminal Corp., 498 F. 2d

641, 646, 647 (5th Cir. 1974); Patmon v. Van Dorn Co., 498 F. 2d 544,

545 (6th Cir. 1974); and Williams v. General Foods Corp., 492 F. 2d

399, 405 (7th Cir. 1974), affirming dismissal as to Union defendants.

5 This issue was raised for the first time on appeal to the Court

of Appeals. For that reason alone, it should not be considered by this

Court.

The District Judge, prior to the close of the second hear-

ing asked plaintiff’s counsel if plaintiff was satisfied with

his responses to defendants’ motions. Plaintiff’s counsel

replied that the answers which he filed were sufficient along

with the exhibits in the case (A .6; B .4).

At a conference in Chambers, on Novemt@f 1, 1973,

plaintiff’s counsel was advised that the Judge would treat

defendants’ motions to dismiss as for summary judgment,

and plaintiff’s counsel was again asked if he had further

material to submit (A .6; B .5). Plaintiff’s counsel twice

indicated that “We have nothing else . . .” (B .5, 6).

Certainly, the record does not demonstrate unfairness to

plaintiff nor an issue of sufficient importance to justify

this Court’s considering procedural arguments, which were

rejected by the Court of Appeals (A .3-.6, .10, .13, .14).

Though Petitioner refers to himself as a representative

of a class in his Statement of the Case, he did not appeal

from the District Court’s dismissal of the class action part

of his complaint (A .9, .31, .32) ; and he does not here assert

that dismissal as a reason for granting his Petition.

Petitioner does not contend that the substantive issues

justify this Court’s considering this case.* Consequently,

6 Plaintiff's Court of Appeals Brief did not assert that the District

Judge erred by finding, on the materials presented, that Ford did not

violate the Master Agreement and that the Unions did not unfairly

represent plaintiff. In his Petition, plaintiff merely suggests that Ford

breached its Master Agreement with the UAW by laying off others

(p. 7). No facts are presented to support that conclusion. Plaintiff

agreed below that the crux of both of his suits was his view that three

loca] seniority Agreements violated the Ford-UAW Master Agreement

(A 8). This Court holds that the discretion of Unions is especially

great in the negotiation and administration of agreements concerning

seniority. Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953); and

Humphrey v. Moore, 375 U.S. 335, 349, 350 (1964).

8

Respondents will not discuss the merits of the substantive

issues.

We do emphasize that the District Judge independently

and thoroughly considered and rejected plaintiff’s charges

of unfair representation (A .22-.24), and plaintiff’s con-

tractual arguments (A .24-.28).

The District Court considered the applicable Master and

local Agreements as well as an Affidavit and other ma-

terial. Plaintiff filed no contra material other than con-

clusionary denials of defendants’ defenses. Under such

circumstances, Rule 56(e) mandated summary judgment

for defendants (B .1, .2).

Based upon the record in this case, the Unions submit

that the Court of Appeals correctly held ‘nat the District

Court properly granted defendants’ Motions ior Summary

Judgment under Rule 56(b), (c) and (e), FRCP.

CONCLUSION

For the foregoing reasons, the Union Respondents sub-

mit that the writ should not issue; said Respondents also

request costs pursuant to Rule 57 of this Court’s Rules.

Respectfully submitted,

John A. Fillion, General Counsel :

Jordan Rossen, Associate General Counsel

By: /s/ Jordan Rossen

Attorneys for Respondents, International

Union, UAW, and Local Union 600

8000 East Jefferson Avenue

\ Detroit, Michigan 48214

Telephone: (313) 926-5216

Of Counsel:

Edwin G. Fabré

Leonard R. Page

Anne Trebilcock

Marley Weiss

M. Jay Whitman

Assistant General Counsel

Dated: April 25,1975 '

APPENDIX OF RESPONDENT UNIONS

IN OPPOSITION

a

PORTIONS OF RULE 56, FEDERAL RULES OF

CIVIL PROCEDURE

Rule 56. Summary Judgment

(b) FOR DEFENDING PARTY. A party against

whom a claim, counterclaim, or cross-claim is asserted or

a declaratory judgment is sought may, at any time, move

with or without supporting affidavits for a summary judg-

ment in his favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion shall

be served at least 10 days before the time fixed for the

hearing. The adverse party prior to the day of hearing

may Serve opposing affidavits. The judgment sought shall

be rendered forthwith if the pleadings, depositions, an-

swers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law. A summary

judgment, interlocutory of character, may be rendered on

the issue of liability alone although there is a genuine is-

sue as to the amount of damages.

(e) Form of Affidavits; Further Testimony; Defense

Required. Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirma-

B. 2

tively that the affiant is competent to testify to the matters

stated therein. Sworn or certified copies of all papers or

parts thereof referred to in an affidavit shall be attached

thereto or served therewith. The court may permit affi-

davits to be supplemented or opposed by depositions, an-

swers to interrogatories, or further affidavits. When a

motion for summary judgment is made and supported as

provided in this rule, an adverse party may not rest upon

the mere allegations or denials of his pleading, but his re-

sponse, by affidavits or as otherwise provided in this rule,

must set forth specific facts showing that there is a genuine

issue for trial. If he does not so respond, summary judg-

ment, if appropriate, shall be entered against him.

B. 3

PORTIONS OF TRANSCRIPT OF HEARING OF

AUGUST 13, 1973

(1)

Boris Thomas, ;

Plaintiff,

vs.

Ford Motor Company, a Delaware Civil Action

corporation, and International Numbers:

Union, UAW, a union organiza- 39879 and 40129

tion, and Local 600, UAW, a

union organization,

Defendants. ‘

Proceedings had and testimony taken in the above-en-

titled cause before the Honorable John Feikens, United

States District Judge, at Detroit, Michigan.

Appearances :

Weiswasser & Barnard

By: Theodore Weiswasser, Esq.

Travelers Tower, Suite 1701

Southfield, Michigan 48076

Appearing on behalf of Plaintiff.

Jordan Rossen, Esq.

8000 East Jefferson

Detroit, Michigan 48214

Appearing on behalf of Defendant UAW.

(1A)

Joseph A. O’Reilly, Esq.

and

James R. Jackson, Esq.

The American Road

Dearborn, Michigan 48121

Appearing on behalf of Defendant Ford

Motor Company.

B. 4

(2) * * * * *

Mr. Weiswasser: Your Honor, Peter [sic] Weiswasser

for the plaintiff.

I believe that we’re here on an adjournment of this order

to show cause, or this motion.

The Court: It’s a motion to dismiss, is it not,

Mr. Weiswasser: Yes, sir, it is. In both instances it is

a motion to dismiss. It was discussed and argued at some

length the last time we were here.

The Court, if I recall, referred it to an adjourned time,

in terms of what additional discussion or documentation

would be prepared. At this time, I have nothing addi-

tional to present to the Court on the (3) Title VII action,

which is the later action which was assigned to your Honor.

I would like to address a few additional words to the

collective bargaining agreement.

19) The Court: The point I am getting at is that

you’re satisfied—and this is what I’m really testing with

my questions—you’re satisfied that you have furnished me

with appropriate responses to each of the (20) points that

have been raised.

Mr. Weiswasser: Well, the point, in particular, is cov-

ered by the exhibits, and it’s well covered.

The Court: All right.

Is that true, now, as to the remaining points, also?

Mr. Weiswasser: Well, I believe that the points are

covered in our—in responsive fashion in our answer.

The Court: Well, I want to know whether or not you

feel you have completely and fully covered these points,

and if you have, then what I'll do is take this matter under

advisement and decide it.

Anything further, gentlemen?

B. 5

Mr. O'Reilly: I have nothing further.

The Court: Mr. Rossen?

Mr. Rossen: Only one other comment, * * *

(21) The Court: All right.

Mr. Weiswasser: Thank you, your Honor.

The Court: All right, gentlemen. I’ll take this matter

under advisement.

PORTIONS OF TRANSCRIPT OF NOVEMBER 1, 1973

CONFERENCE

(3) Detroit, Michigan

Thursday, November 1, 1973

The Court: Let’s put this on the record.

Boris Thomas versus the Ford Motor Company and

International Union UAW Local 600, Civil Action Num-

bers 39879 and 40129.

Mr. Weiswasser appears in both cases for the plaintiff.

The International and Local is represented by Mr. Jordan

Rossen, and the Ford Motor Company is represented by

Joseph O’Reilly and Richard Maloy. (sic)

Then, for the record, Mr. Weiswasser, the plaintiff has

no further papers to submit; is that correct?

Mr. Weiswasser: That’s correct, sir.

The Court: Does the defendant union have anything

further?

Mr. Rossen: No, your Honor.

I might say, in our initial motion, which we briefed, the

complaint should be dismissed on the pleadings, we indi-

cated that we would be agreeable, in fact, (4) that the Court

B. 6

might have to treat this as a motion for summary judg-

ment in the event that it went outside the pleadings.

The Court: I made no disposition of it at that time.

That’s why I was affording an opportunity—

Mr. Weiswasser: We have nothing else, your Honor.

The Court: Do you, Mr. O’Reilly?

Mr. O’Reilly: No, your Honor.

The Court: Then I will proceed to regard it as a motion

under Rule 56 and dispose of it.

All right. Thank you for coming in, and I will issue an

opinion shortly.