Opposition Brief — Jones v. General Electric Co.

Supreme Court; U.S, ;|

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OCT 25 1996

No. 96-467

CLEPK

In The

Supreme Court of the United States

October Term, 1996

+

JERRY JONES, ET AL.,

Petitioners,

Vv.

GENERAL ELECTRIC COMPANY,

Respondent.

S

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

S

RESPONDENT'S BRIEF IN OPPOSITION

*

Tuomas A. Herr*

James P. Fenton

CATHLEEN M. SHRADER

Barrett & McNacny

215 East Berry Street

Fort Wayne, Indiana 46802

(219) 423-9551

Counsel for Respondent

General Electric Company

“Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

1. Whether the petitioners have waived any argu-

ment that International Union of Elevator Constructors v.

Home Elevator Co., 798 F.2d 222 (7th Cir. 1986), upon

which the District Court and Seventh Circuit Court of

Appeals relied, is inconsistent with this Court’s decision

in International Union, United Auto Workers of America v.

Hoosier Cardinal Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L.

Ed. 2d 192 (1966), and should thus be overturned since no

such argument was made below by the Petitioners.

2. Whether the Petition for Writ of Certiorari should

be denied where Petitioners have not shown any incon-

sistency between the Seventh Circuit Court of Appeals’

Opinion Below and its decision in International Union of

Elevator Constructors v. Home Elevator Co., 798 F.2d 222

(7th Cir. 1986), and this Court’s decision in International

Union, United Auto Workers of America v. Hoosier Cardinal

Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966)

and whether the writ should be denied even if a pur-

ported conflict existed.

3. Whether the Petition for Writ of Certiorari should

be denied where Petitioners have not shown any incon-

sistency between the Seventh Circuit Court of Appeals’

opinions in International Union of Elevator Constructors v.

Home Elevator Co., 798 F.2d 222 (7th Cir. 1986), and in

Anderson v. Flexel, Inc., 47 F.3d 243 (7th Cir. 1995) and

whether the writ should issue even if such a conflict

existed.

il

LIST OF ALL PARTIES TO THE PROCEEDINGS

General Electric Company itself has common stock

and debt securities which are publicly traded. General

Electric Company also has a number of subsidiaries in the

United States and elsewhere. There are, however, only a

limited number of these subsidiaries which have any

outstanding equity or debt securities which are publicly

held.

Those with publicly-held equity securities are:

-~ CAMCO, Inc. (Canada)

- Genera! Electric Capital Corporation (formerly

General Electric Credit Corporation)

- Montgomery Ward & Co., Incorporated

- Nuovo Pignone (Italy)

Those which have only publicly-held debt securities are:

- Credit DeL’Est |

— Finax FS AB

— Finax KK AB

- GE Capital Aviation Services, Ltd.

- GE Capital Mortgage Services, Inc.

- GE Capital (NZ) Ltd. (New Zealand company)

— GE Capital PTY LTD. (Australian company)

— GECC Financial Corporation (Hawaii)

- GNA Corporation

iii

LIST OF ALL PARTIES

TO THE PROCEEDINGS - Continued

Gate Finance Corporation

General Electric Capital Canada, Inc.

General Electric Capital Services, Inc. (formerly

General Electric Financial Services, Inc.)

General Electric Credit Internationa!, N.V.

Imaging Financial Services, Inc. (formerly East-

man Kodak Credit Corp.)

International GE Capital Corporation

Mercur Bank (Austria)

Service Bank GmbH

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ..:........ i

LIST OF ALL PARTIES TO THE PROCEEDINGS... iii

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THE PETITION SHOULD BE DENIED SINCE PETI-

TIONERS HAVE PRESENTED NO COMPELLING

ALES BASU MATE 05 i 6.00 00d bide onccdnedien 4

A. THE ERRORS CLAIMED BY THE PETI-

TIONERS WERE WAIVED, AND PETI-

TIONERS HAVE PROFFERED NO

COMPELLING REASONS FOR REVIEW...... 4

B. THE PETITIONERS, IN ERRONEOUSLY ALLEG-

ING AN INTRA-CIRCUIT CONFLICT AND A

CONFLICT BETWEEN THE SEVENTH CIRCUIT

AND THIS COURT, PUT FORTH NO COMPEL-

LING REASON FOR REVIEW.................. 6

1. Although Petitioners Allege a Conflict

Between the Seventh Circuit and This Court,

No Such Conflict Is Present and, Even

Assuming the Presence of Such a Conflict,

No Compelling Reason for Review Has Been

ge RT Peer Pr cr ere eer eee 6

¥

TABLE OF CONTENTS - Continued

Page

2. Although Petitioners Allege a Conflict Within

the Seventh Circuit, No Such Conflict Is Pres-

ent And, Even Assuming the Presence of

Such a Conflict, No Compelling Reason for

Review Has Been Presented. ............... 9

CUINCLUBIORG Cosa ccc eee ee ee 12

vi

TABLE OF AUTHORITIES

Page

CASEs:

Anderson v. Flexel, Inc., 47 F.3d 243 (7th Cir. 1995) ..10, 11

DeShaney v. Winnebago County Department of Social

Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed.

20h. ZAD: CASTOR}. sigs ikb ape en deh os bec wna than eee aneen 4

Hubbard v. United States, _ U.S. __, 115 S. Ct.

RZ oy Lk Lc SUR Te Ce caer aer he inereaes 9

International Union of Elevator Constructors v. Home

Elevator Co., 798 F.2d 222 (7th Cir. 1986)...... passim

International Union, United Auto Workers of America

v. Hoosier Cardinal Corp., 383 U.S. 696, 86 S. Ct.

1107, 16 L. Ed. 2d 192 (1966) ........... 5, 6, 7,:8,.10

Kosak v. United States, 465 U.S. 848, 104 S. Ct. 1519,

79 Uy D> 2 BOG TPs cas sak sce oee eres reais 5

Layne & Bowler Corp. v. Western Well Works, Inc.,

261 U.S. 387, 43 S. Ct. 422, 67 L. Ed. 712 (1923) .... 11

Majd Pour v. Basic Am. Medical, Inc., 512 N.E.2d

435 (Ind. Ct. ADO. TGF}. cca vecsasdasintcnsesenesss 7

Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 69 S.

Ce. 606, 93: 4.5 Bek. FER CIs bs ness Fae baa 11

STATUTES

Section 301 of the Labor Management Relations

Ac& 29 USC. 8 UG vcs eb ccthncuseecebasesavaaes ts 1

Sap, CER WEES, oo ss a cecsckb ieee eae ee 4

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit, case number 95-2281, is reported at

87 F.3d 209 and is reproduced in Petitioners’ Appendix

(“App.”) at page 2. The opinion of the United States

District Court for the Northern District of Indiana, case

number 1:95-CV-11-AS, is unreported and is reproduced

in Petitioners’ Appendix at page 13.

BASIS FOR JURISDICTION

Petitioners have correctly stated the grounds on

which they seek to invoke the jurisdiction of this Court.

”

STATUTES INVOLVED

The state statutes involved are Inv. Cope § 34-1-2-1.5

and INp. Cops § 34-1-2-2(6), and these statutes are cor-

rectly set forth in the Petition and reproduced in Peti-

tioners’ Appendix at page 19.

STATEMENT OF THE CASE

On January i1, 1995, petitioners filed suit under sec-

tion 301 of the Labor Management Relations Act, 29

U.S.C. § 185, a statute which provides the basis for fed-

eral jurisdiction for violations of collective bargaining

agreements entered into between labor unions and

employers engaged in interstate commerce. In the Com-

plaint, plaintiff, Jerry Jones as representative of a class of

plaintiffs and as a member of a union, alleged no pendent

state claims but only a violation of his contractual rights

under the collective bargaining agreements between the

unions, United Electrical Radio and Machine Workers of

America (“UE”) and International Electrical Radio and

Machine Workers of America (“IUE”), and the defendant

General Electric Company (“GE”).

In his Complaint, Jones alleged that he was a member

of the United Electrical Radio and Machine Workers of

America (“UE”) while employed at GE’s plant in Decatur,

Indiana, and that he was employed under a collective

bargaining agreement which was in effect from June 27,

1988 through 1991. When, in 1989, the Decatur plant

closed permanently, Jones and other employees were

transferred to GE’s Fort Wayne, Indiana, plant where they

became members of the International Electrical Radio and

Machine Workers of America (“IUE”) and were employed

under a collective bargaining agreement between GE and

the IUE.

Jones further alleged that GE breached the collective

bargaining agreements under which he was employed

with respect to his seniority and service credits when he

was transferred to GE’s Fort Wayne, Indiana, plant fol-

lowing the closure of its Decatur, Indiana, plant. Jones

also alleged that he was told he would have certain

seniority and service credit rights which he alleged did

not come about and that GE misrepresented what his

seniority and service credit rights would be after he was

transferred. Lastly, Jones alleged in the Complaint that he

pursued the grievance procedure as required by the par-

ties’ collective bargaining agreements and that he

exhausted all grievance resolution procedures as set forth

therein. Jones did not allege in the Complaint the exis-

tence of any other written contract between the parties

other than the collective bargaining agreements. More-

over, Jones failed to sue the unions or allege a breach of

the unions’ duty of fair representation which they owe

to him. |

General Electric filed a Motion to Dismiss on the

grounds that the Complaint was fatally deficient in that

Jones failed to name the unions and allege a breach of

their duty of fair representation as required under section

301. In the alternative, GE argued that Jones’s Complaint

was untimely as it was filed more than six months after

his cause of action arose. In its reply brief, GE also

argued, in the alternative, the application of a two-year

statute of limitations which the trial court applied in

dismissing the Complaint. Jones conceded that his Com-

plaint was time-barred if either the six-month or two-year

statutes applied, but argued instead in favor of a ten-year

statute of limitations.

The United States District Court for the Northern

District Of Indiana, Fort Wayne Division, following the

Seventh Circuit’s decision in International Union of Eleva-

tor Constructors v. Home Elevator Co., 798 F.2d 222 (7th Cir.

1986), held that Indiana’s two-year statute of limitations

for employment-related actions applied to the cause of

action rather than the ten-year statute of limitations

urged by Jones. Thus, the action was time-barred. On

Jones’s appeal to the United States Court of Appeals for

the Seventh Circuit, the court affirmed the district court’s

decision holding that despite the fact that Indiana’s two-

year statute of limitations for employment related actions

exempted actions based upon written contracts, it

remained the most analogous state statute of limitations.

SJ

ARGUMENT

THE PETITION SHOULD BE DENIED SINCE PETI-

TIONERS HAVE PRESENTED NO COMPELLING REA-

SONS FOR REVIEW

The decision of the Court of Appeals in the present

case is correct, and Petitioners present no compelling

reason for issuing the writ. The decision of the Seventh

Circuit breaks no new ground in interpreting any issue of

federal law, and has not been shown by petitioners to be

inconsistent with any decision of this Court or any deci-

sion of any other federal court of appeals. Thus the

petition should be denied. See Sur. Cr. R. 10 (setting forth

the considerations governing review on certiorari). More-

over, the questions presented by petitioners are ones

which have no significance beyond the State of Indiana,

and, at bottom, fundamentally involve an interpretation

of state law; namely, the resolution of an Indiana statute

of limitations issue. Accordingly, a less likely candidate

for certiorari could scarcely be imagined.

A. The Errors Claimed by the Petitioners Were Waived,

and Petitioners Have Proffered No Compelling Rea-

sons for Review.

It is well-settled that where an argument is not pre-

sented to a court of appeals, but is presented for the first

time in this Court, this Court will almost invariably

decline to consider it. See, e.g., DeShaney v. Winnebago

County Department of Social Services, 489 U.S. 189, 195 n.2,

109 S.Ct. 998, 103 L. Ed. 2d 249 (1989); Kosak v. United

States, 465 U.S. 848, 850 n.3, 104 S. Ct. 1519, 79 L. Ed. 2d

860 (1984). Moreover, in the present case, although peti-

tioners now assert that the Seventh Circuit misconstrued

International Union, United Auto Workers of America v. Hoo-

sier Cardinal Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed.

2d 192 (1966), the petitioners failed to cite, let alone

discuss, Hoosier Cardinal in either of their briefs in the

Court of Appeals. Hence, any question as to whether the

Seventh Circuit correctly applied Hoosier Cardinal was not

preserved in the lower court in such a fashion as would

justify this Court’s intervention. Moreover, since peti-

tioners do not even assert a conflict between the opinions

of the Seventh Circuit and any ruling of any other court of

appeals, no one but the petitioners has ever claimed that

the opinion relied upon by the Seventh Circuit, Interna-

tional Union of Elevator Constructors v. Home Elevator Co.,

798 F.2d 222 (7th Cir. 1986), is in conflict with Hoosier

Cardinal. Thus the claimed error which, as discussed infra

is no error, hardly presents a compelling reason for this

Court to grant certiorari.

6

B. The Petitioners, In Erroneously Alleging an Intra-

Circuit Conflict and a Conflict Between the Seventh

Circuit and This Court, Put Forth No Compelling

Reason for Review.

1. Although Petitioners Allege a Conflict Between

the Seventh Circuit and This Court, No Such

Conflict Is Present and, Even Assuming the

Presence of Such a Conflict, No Compelling

Reason for Review Has Been Presented.

Petitioners here misstate the holding of the Court of

Appeals in this case, claiming that the court “has extrapo-

lated [the] reasoning of Hoosier Cardinal to conclude that

for purposes of the Indiana employment related claims

statute, which expressly excepts out written contracts, a

collective bargaining agreement is not a written con-

tract.” Petition for Writ of Certiorari at 7. However, in this

case, the Court of Appeals actually held that in a case

such as this, where the only written contract upon which

the claim is based is a collective bargaining agreement,

the action “is not entirely based on a written contract.”

Jones, 87 F.3d at 212 (App. at 8) (quoting Home Elevator,

798 F.2d at 230 & n.9). Such a holding is entirely consis-

tent with Hoosier Cardinal since therein this Court held

that

[proof of the breach and of the measure of

damages, however, both depend upon proof of

the existence and duration of separate employ-

ment contracts between the employer and each of the

employees. Hence this § 301 suit may fairly be

characterized as one not exclusively based upon

a written contract.

Hoosier Cardinal, 383 U.S. at 1114 (emphasis added).

Precisely the same circumstances are presented here.

Petitioners did not plead that this action was based

entirely on a written contract. In the Complaint, Jones

avers that when he transferred to another plant he did

not receive the benefits that he was “told” he would

receive. Jones, 87 F.3d at 212 (App. at 8). These facts fall

squarely within the confines of Hoosier Cardinal and Home

Elevator. As set forth in the Seventh Circuit’s opinion, the

only substantive argument advanced by petitioners (and

advanced belatedly) that Home Elevator was distinguish-

able (id. at 212-13 (App. at 8-10)) is unpersuasive because

Petitioner failed to plead a separate written contract

between himself and GE. But the question of whether one

decision of the Seventh Circuit can be distinguished from

another decision of the Seventh Circuit is one which falls

far below this Court's threshold for certiorari, and would

be so fact-based as to vitiate the requirement that the

focus of the writ be upon issues of overriding national

importance.

Jones argued that a letter written to a co-worker

which he may have received constitutes a written con-

tract entitling him to a ten-year statute of limitation. In

specifically addressing this argument, the Seventh Circuit

found that none of the elements for a written employment

contract as required under Indiana law were present. Id.

at 213 (App. 9-10). Indiana law requires a contract of

employment to contain four items: 1) the place of

employment; 2) the period of employment; 3) the nature

of the service the employee is to render; and 4) the

compensation the employee is to receive. Majd Pour v.

Basic Am. Medical, Inc., 512 N.E.2d 435, 439 (Ind. Ct. App.

1987) (App. p. 9). Thus the decision of the Seventh Circuit

presents no conflict with the decisions of this Court.

As the Court of Appeals observed, the facts of this

case are “very similar to Home Elevator.” Id. (App. at 8). In

Home Elevator, the Seventh Circuit concluded in that a

section 301 action in which “the basic allegation . . . is

that a company breached the collective bargaining agree-

ment,” Home Elevator, 798 F.2d at 227, the two-year Indi-

ana statute would apply, since such an action is not

entirely based on a written contract, id. at 230 & n.9.

Petitioners in this case sought to distinguish Home Eleva-

tor, but did not seek to have the Seventh Circuit overrule

it. Jones, 87 F.3d at 212 (App. at 8). However, before this

Court, the petitioners argue that Hoosier Cardinal is incon-

sistent with Home Elevator and, in effect, seek a ruling

overturning Home Elevator, although no challenge to

Home Elevator was presented in the Seventh Circuit. As

noted above, an argument not raised in the lower court is

generally waived.

Moreover, as recently noted by several members of

this Court,

in the present day federal court system, where

review by this Court is almost entirely discre-

tionary, a different regime [from where there is

an appeal as of right] prevails. We receive nearly

7,000 petitions for certiorari every Term, and can

grant only a tiny fraction of them. A high degree

of selectivity is thereby enjoined upon us in

exercising our certiorari jurisdiction, and our

Rule 10 embodies the standards by which we

decide to grant review. One of the reasons con-

tained in Rule 10.1(a) is the existence of a con-

flict between one court of appeals and another.

The negative implication of this ground, borne

out time and again in our decisions to grant and

deny certiorari, is that ordinarily a court of appeals

decision interpreting one of our precedents — even

one deemed to be arguably inconsistent with it — will

not be reviewed unless it conflicts with a decision of

another court of appeals. This fact is a necessary

concomitant of the limited capacity in this

Court.

Hubbard v. United States, ___ U.S. __, __, 115 S. Ct. 1754,

131 L. Ed. 2d 779, 798 (1995) (Rehnquist, C.J., dissenting)

(emphasis added). Thus, even if the Seventh Circuit had

misapplied the precedent of this Court, such a misap-

plication does not present a “compelling” reason to grant

the petition since petitioners have not alleged that the

Seventh Circuit’s decision below is in conflict with any

other decision of its sister circuits. Accordingly, the Peti-

tion for Writ of Certiorari should be denied.

2. Although Petitioners Allege a Conflict Within

the Seventh Circuit, No Such Conflict Is Present

And, Even Assuming the Presence of Such a

Conflict, No Compelling Reason for Review

Has Been Presented.

In their Petition for Writ of Certiorari, the petitioners

allege that the Seventh Circuit erred in applying Home

Elevator and, in doing so, created an intra-circuit conflict.

However, as the Seventh Circuit pointed out in the opin-

ion below, the result reached in this case is identical to

the rule which has prevailed in such actions in the federal

courts in Indiana for ten years. Jones, 87 F.3d at 212 (App.

10

at 8). Hence, the petitioners could not and do not main-

tain that the application of a two-year statute of limita-

tions in this case — a period of limitations which the

Seventh Circuit has applied to such actions since Home

Elevator — presented them with any sudden or surprising

change in the governing law.

Indeed, the petitioners’ assertion to this Court that

the Seventh Circuit erred in applying Home Elevator and

was required to apply a ten-year Indiana statute of limita-

tions in such actions (as the court did in Anderson v.

Flexel, Inc., 47 F.3d 243 (7th Cir. 1995)) is even less persua-

sive given the utter lack of equity underlying the peti-

tioners’ position. In Home Elevator, the Seventh Circuit

concluded that a two-year statute >f limitations was “con-

sistent with federal labor disputes and contractual agree-

ments to submit grievances to arbitration.” Jones, 87 F.3d

at 212 (App. at 8) (citing Home Elevator, 798 F.2d at 230 &

n.9). Petitioners do not even venture an explanation as to

why the application of a ten-year statute of limitations

would further federal labor policy or otherwise further

an equity other than the petitioners’ own particular posi-

tion. Petitioners obliquely concede that this Court in Hoo-

sier Cardinal did take into consideration the policy of

timely resolution of labor relations claims and acknowl-

edged that Indiana’s statute of limitations for a written

contract was not applied by this Court in Hoosier Cardinal

because the statute “was seemingly too lengthy to fulfill

the policies behind labor relations claims.” (Petition at p.

7).

Although the Seventh Circuit’s opinion demonstrates

the applicability of Home Elevator, the petitioners chal-

lenge this application stating that it is inconsistent with

11

the Seventh Circuit’s later holding in Anderson v. Flexel,

Inc., 47 F.3d 243 (7th Cir. 1995). Leaving aside for the

moment the question of whether such inconsistency pre-

sents a compelling reason to review the lower court deci-

sion, it must be noted first that there is no inconsistency.

As set out above, the court found the facts in Jones to fall

within the confines of Home Elevator. Later in the opinion,

the Court of Appeals specifically addressed the inconsis-

tency argument and distinguished Anderson on two

grounds. First, Anderson was not a section 301 action; it

was an ERISA action. Second, the contract at issue in

Anderson was a life insurance contract, “much more sub-

stantial than the one-page clarification letter” Jones

offered. Jones, 87 F.3d at 213. The Petitioners present no

new argument here and advance no reason why this

Court should grant Petitioners’ petition.

Moreover, even if this Court were to find an inconsis-

tency between opinions in the Seventh Circuit, such an

inconsistency would not present the type of issue on

which this Court would routinely exercise its very limited

jurisdiction. As noted by Justice Frankfurter, the Court

must be

consistent in not granting the writ of certiorari

except in cases involving principles the settle-

ment of which is important to the public as

distinguished from that of the parties, and in

cases where there is a real and embarrassing conflict

of opinion and authority between the circuit courts

of appeal.

Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 385 n.1, 69

S.Ct. 606, 93 L. Ed. 741 (1949) (Frankfurter, J., dissenting)

(quoting Layne & Bowler Corp. v. Western Well Works, Inc.,

12

261 U.S. 387, 393, 43 S.Ct. 422, 67 L. Ed. 712 (1923))

(emphasis added). There is no conflict between the cir-

cuits, merely a claimed conflict between two opinions in

the same circuit. Especially considering the fact that there

is no conflict, the petitioners have presented no compel-

ling reason for the exercise of this Court’s jurisdiction.

Accordingly, the Petition for Writ of Certiorari should be

denied.

+

CONCLUSION

The petitioners argue that the extraordinary exercise of

this Court’s jurisdiction is justified for several reasons. How-

ever, the reasons presented are not compelling. First, peti-

tioners argue error which was not raised in the lower courts

and is thus waived. Next, the petitioners argue that the

Seventh Circuit’s decision conflicts with both an opinion of

this Court and a Seventh Circuit opinion. However, none of

these alleged conflicts exist and, even assuming they did, the

conflicts are not of the type which would justify this Court's

exercise of its jurisdiction. For these reasons, the Petition for

a Writ of Certiorari should be denied.

Respectfully submitted this 25th day of October, 1996.

THomas A. Herr*

James P. FENTON

CATHLEEN M. SHRADER

Barrett & McNacny

215 East Berry Street

Fort Wayne, Indiana 46802

(219) 423-9551

Counsel for Respondent

General Electric Company

"Counsel of Record