Opposition Brief — Cook v. Chrysler Corp.

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No. 92-1696 |

———_ EEE

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

JESSE L. Cook,

Petitioner,

vs

CHRYSLER CORPORATION and

LocaL 110 OF THE

UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL

IMPLEMENT WORKERS OF AMERICA (UAW),

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF IN OPPOSITION

FOR UAW LOCAL 110

MorRIs J. LEVIN JORDAN ROSSEN

APPLETON, KRISTMAS, General Counsel

LEVIN & BEATTY M. JAY WHITMAN

8000 Maryland Ave. (Counsel of Record)

Clayton, MO 63105 Associate General Counsel

(314) 721-8685 8000 East Jefferson Ave.

Detroit, MI 48214-2699

(313) 926-5216

Counsel for UAW Local 110

Witson - Eras Printine Co., Inc. - 789-0096 - WasHINGTON. D.C. 20001

@ ARE. 0

COUNTERSTATEMENT OF QUESTIONS PRESENTED

1. Was a timely Petition for Certiorari filed as to

Local 110, when the Petition names only Local 136, a

non-party?

2. Under TWA v. Hardison, 432 U.S. 63 (1977),

was Local 110 required to abandon the seniority of other

employees, or the use of bargained seniority procedures,

€.g., a “first-come-first-served” signup book for Friday

absences, to accommodate Cook’s religion?

3. Was the finding of the trial Court that other ac-

commodations would impose more than a de minimus

burden on Chrysler, as affirmed by the Eighth Circuit,

clearly erroneous under F.R. Civ. Pro 52(a)?

(i)

ii

PARTIES TO THE PROCEEDINGS

Petitioner lists the parties to the proceedings below

as “Jesse Cook, the petitioner, and Chrysler Corporation

and United Automobile, Aerospace and Agricultural Im-

plement Workers Local 136, respondents.” Pet. at ti.

As to the Union party. this is incorrect. Chrysler oper-

ated two sister plants in Fenton, Missouri. Plant I was

represented by UAW Local 136. Plant IT was represented

by UAW Local 110. Petitioner was on layoff from Plant

I. He then chose to take a job in Plant II, under the

jurisdiction of Local 110. The resulting loss of plant

seniority put him on the Second Shift at Plant If, and

so began the events leading to his discharge by Chrysler.

Local 110 filed the grievance at issue, and was the Union

party in both the District Court and the Eighth Circuit.

(Pet. App. la. 8a, 9a, & 10a.)* Local 136, named in

the instant Petition, was not a party below.

-

—o

* The original Complaint erroneously sued Local 136. This was

corrected in the Amended Complaint, which named only Local 110.

I Appellant’s Appendix at 7. The November 25, 1987 docket entry

in the District Court recited “. . . Local 110 in substitution for the

deft. Local 136 previously named (by error) fid.” I Appellant’s

Appendix at 2.

TABLE OF CONTENTS

COUNTERSTATEMENT OF QUESTIONS PRE- a

SENTED Finn aE ial — 7 i

PARTIES TO THE PROCEEDINGS ii

TABLE OF AUTHORITIES |... . iv

MEIN I occas unsnnixencnesscnssncceneereecnvacssannnens I

JURISDICTION 2

COUNTERSTATEMENT OF THE CASE 2

ARGUMENT . ears — 6

I. NO TIMELY PETITION AS TO LOCAL 110 6

Il. TWA v. HARDISON IS NOT IN NEED OF :

GLOSS OR REVISITATION 6

Ill. DE MINMUS COST & RULE 52 (a) as

CONCLUSION ___.. A 1S BEE 9

(iii)

iv

TABLE OF AUTHORITIES

Cases: Page

Torres v. akland Scavenger Co., 487 U.S. 312

TR Wire ien i Batts att OR lay in ultiad Dor ie 6

Cook v. Chrysler & UAW Local 110, 981 F.2d 336

SEUOUN Wants IE Greta ciasba Sts csctnneumees umn sueandieraeeoe 1,5

Cook v. Chrysler & UAW Local 110, 779 F. Supp.

BORG Cer a Re onscreen ron Las

TWA v. Hardison, 432 U.S. 63 (1977) __.. Lt aah rat ii, 5-9

Wilson v. NLRB, 920 F.2d 1282 (6th Cir. 1990) _. 9

Statutes and Rules:

Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e-2(a), (c) & (h)_..... 2

Federal Rules of Civil Procedure, Rule 52(a)_...... i, 5,8

IN THE

Supreme Court of the United States

OcTOBER TERM, 1992

No. 92-1696

Jesse L. Cook,

= Petitioner,

CHRYSLER CORPORATION and

LOCAL 110 OF THE

UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL

IMPLEMENT WORKERS OF AMERICA (UAW),

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

BRIEF IN OPPOSITION

FOR UAW LOCAL 110

Local 110 of the United Automobile, Aerospace and

Agricultural Implement Workers of America (UAW), by

counsel, respectfully pray that the Court deny the Petition

for Writ of Certiorari.

OPINIONS BELOW

The opinion of the Court of Appeals for the Eighth

Circuit is reported: Cook v. Chrysler & UAW Local 110,

981 F.2d 336 (8th Cir. 1992) (per Beam, J.). affirming

779 F. Supp. 1016 (E.D. Mo. 1991) (per Limbaugh, J.).

~

~

2

JURISDICTION

The Petition asserts jurisdiction under 28 U.S.C.

$ 1254(1), to review a judgment under the religious dis-

crimination provisions of Tithe VII, 42 U.S.C. § 2000c-

2(a), (c) & (h). The Eighth Circuit’s judgment was

entered December 7, 1992, and rehearing denied January

21, 1993. This Petition was filed April 21, 1993.

Local 110 respectfully submits that, as to Local 110,

no timely Petition has been filed. Under Rule 13.1, a

Petition is only timely if it is filed “within 90 days after

the entry of the judgment.” Both the caption and the body

of the Petition name “Local 136°, which is not a party.

Local 110 is not named, although it was substituted in

the first days of the litigation at Petitioner’s own instance.

COUNTERSTATEMENT OF THE CASE

The best statement is that ofthe Eighth Circuit, relying

on the District Court’s trial findings.’ It has the added

advantage of being neutral:

Cook was employed on the assembly line at Chrysler's

St. Louis plants from 1976 to 1986, when Chrysler termi-

nated him for excessive absences. Cook is a Seventh Day

Adventist, whose beliefs prohibit work from sundown Fri-

day to sundown Saturday. His terms and conditions of

employment are set by a National Agreement between

Chrysler and the UAW, which is supplemented by a local

agreement between Chrysler and the relevant Local.

Under the labor agreements, seniority is determined on

a plant-by-plant basis, and seniority at a plant prevails

over seniority with the Corporation. Shift assignments,

in particular, are determined by plant seniority.

Cook was on layoff from Plant I, represented by Local

136. He was offered an open job at Plant II, represented

1981 F.2d 336, 337-38, Pet. App. la-3a; and 779 F. Supp. 1016,

1018-22, Pet. App. lla-18a.

3

by Local 110. He took the job at Plant IT and, because

he had no seniority at Plant II,’ was placed on the evening

shift, which worked on Friday nights. He could have

retained his seniority if he had remained on layoff until

recalled at Plant I. |

The collective bargaining agreement provides for a

negotiated, no-fault absenteeism policy, known as the Uni-

form Attendance Procedure. It deals with excessive and

chronic absenteeism, providing a six-step system of pro-

vressive discipline, subject to grievance and arbitration

procedures. Any employee absent more than 20% of

his regularly scheduled time is subject to discharge. In

addition, the Local Agreement at Plant II (Local 110)

was amended to address a particular problem with Friday

night absenteeism. Fridays are the most sought for ex-

cused absences. The amendment, known as the “excused

in advance system” or “book procedure”, required that,

to get an excused day off on Friday, the employees had

to sign up in a book on a first-come-first-served basis.

Cook took the job in Plant II, represented by Local

110, in January, 1986. Because he had no plant seniority

at Plant Il. he was assigned to the afternoon shift. Cook

informed his supervisor of the need for accommodation

of his religious beliefs, proposing a shift change, working

on Sunday instead of Friday, or a flexible schedule. The

matter was taken up with Chrysler’s labor relations and

Local i110. The Local refused to waive the seniority pro-

visions which governed shift. preference and scheduling,

as well as the “book” procedure on Friday absences.

Chrysler began disciplining Cook and, seven months

later, on September 16, 1986, fired him under the Uni-

form Attendance Procedure. Local 110 filed grievances

on each discipline, which Chrysler denied. (A. 555-561 )

2 Like the Court below, we use “seniority” here to refer to “com-

petitive” rather than “benefit” seniority.

4

Local 110 sent the discharge grievance to the final

step, the Chrysler-UAW Appeal Board in Detroit. The In-

ternational Union sought reinstatement of Cook, sug-

gesting the use of a “floater” on the nights he was ab-

sent, or a continuing excused absence for Friday nights.

Chrysler rejected the proposal, and the International Un-

ion withdrew the grievance because, on the face of it, the

discharge was proper under the Uniform Attendance

Procedure."

This litigation followed. After six days of trial, the

District Court granted judgment for both Chrysler and

Local 110, holding, as to the Local, that “failure to se-

cute for plaintiff the relief he wanted does not evidence a

breach of the Union’s good faith duty to represent plain-

tiffs interest.” * The trial Court held that the “Union

had no duty to waive or modify the seniority provisions

of the local agreement to the detriment of its members.” °

Refusal to do so, the District Court held, “neither con-

stituted unlawful discrimination against plaintiff or caused

such discrimination by Chrysler.” " As to both Chrysler

and Local 110, the trial Court held that the duty of

“reasonable accommodation” was satisfied."

As to Chrysler, the District Court went orf to find, as

a matter of fact: “Other options would require Chrysler

to bear more than a de minimus cost in order to give plain-

tiff the Sabbath off.” * In particular, the trial Court cred-

3779 F. Supp. at 16.1, Pet. App. 18a.

4779 F. Supp. at 1025, Pet. App. 25a. -

5779 F. Supp. at 1024, Pet. App. 24a.

6779 F. Supp. at 1024-25, Pet. App. 24a.

7779 F. Supp. at 1025, Pet. App. 25a.

8779 F. Supp. at 1024, Pet. App. 24a.

5

ited evidence that Chrysler would suffer additional costs

both in money and lost efliciency.” The use of TPT’s '°

or “floaters” would impose additional wage and benefit

costs on Chrysler."

This, of course, is exactly why the UAW favored such

a solution and Chrysler rejected it.’° The Union wanted

the absences covered, not at the expense of another em-

ployee’s seniority, but by Chrysler having to increase the

complement of employees needed at Plant II to cover

absences. The Union’s goal was to increase work oppor-

tunities, particularly when workers were laid off. Success

would, in addition, create a precedent and an opening for

future negotiations.

Chrysler had the opposite goal, inspired by the fact

that Cook got the full benefit package (as did his replace-

ment) even though Chrysler got only four days of work

out of him, rather than a whole week.

The Eighth Circuit affirmed, finding both that the rea-

sonable accommodation was offered. As to Chrysler, the

Court of Appeals affirmed the trial Court’s factual find-

ing, as not clearly erroneous under F.R. Civ. Pro. 52(a),

that any other accommodation would impose more than

de minimus cost, and so undue hardship under TWA v.

Hardison, 423 U.S. 63 (1977)."

® 779 F. Supp. at 1023-24, Pet. App. 22a-23a.

10.TPT’s are temporary part-time employees. ‘Floaters’ or “pool”

employees are regular, seniority employees who are held in a re-

placement pool to cover vacancies on the line.

11981 F.2d at 339, Pet. App. 5a-6a.

12 Supp. App. 621-23, 645, 665.

13 98] F.2d at 339, Pet. App. 22a-24a.

6

ARGUMENT

This litigation, like most, is of intense importance to

those directly involved. The legal issues, nevertheless,

are prosaic, and are cast up in a context which is both

fact-specific and otherwise ill-suited for this Court’s review.

I. NO TIMELY PETITION AS TO LOCAL 110

The first reason to deny certiorari is that no petition

has been filed as to Local 110, nor can one now be filed

in a timely manner under Rule 13.1. The Petition, both

in its caption and text, names only Local 136, a non-

party. Cf., Torres v. Oakland Scavenger Co., 487 US.

312 (1988) (use of “et al.’ in notice of appeal juris-

dictionally inadequate designation of appellants under

F.R.A.P. 3(c)). Local 110 has been the party since

November 25, 1987, when it was substituted on Peti-

tioner's own amendment to the Complaint.

Il. TWA v. HARDISON IS NOT IN NEED OF GLOSS

OR REVISITATION

Petitioner urges that TWA _ v. Hardison, 432 U.S. 63

(1977) had led the Circuits into a confused disarray

of approaches, particularly as regards accommodations

contrary to (what Petitioner denominates) “non-seniority”

provisions of labor agreements. Pet. 11-21.

No such disarray exists, beyond the normal variation

of results born of differing facts. Sabbatarian cases, like

this one, turn on seniority issues. This is for the simple

reason that the key issue is whether plaintiff must work

the afternoon shift, and, at least in unionized settings.

shift preference is universally determined by seniority,

directly or indirectly. That is not to say that other pro-

visions of the collective bargaining agreement cannot get

entangled. For instance, an employee may walk off his

afternoon shift job at sundown, disobeying a direct or-

der. When he gets fired for disobedience to the order,

7

it hardly means that a non-seniority provision of the labor

agreement (i.e., the Shop Rule against that disobedience)

precludes a reasonable accommodation.

In like manner, here Petitioner's problem was not

Chrysler's Uniform Attendance Procedure. It was that,

after hiring into Plant II, he simply lacked the seniority

to hold the day shift, the only shift which quit work be-

fore the Sun.

In Hardison, this Court understood this. However a

particular provision was labelled, the Court held that fel-

low employees cannot be made to pay for the religious ac-

commodation of another through loss of their own com-

petitive rights (typically tagged “‘seniority’’) under a ne-

gotiated labor agreement. The Court’s language is broad,

not because of confusion about the principle, but because

care is always required when describing a factually di-

verse economy:

We agree that neither a collective-bargaining contract

nor a seniority system may be employed to violate

the statute, but we do not believe that the duty to

accommodate requires TWA to take steps incon-

sistent with the otherwise valid agreement. Collec-

tive bargaining, aimed at effecting workable and en-

forceable agreements between management and labor,

lies at the core of our national labor policy, and

seniority provisions are universally included in these

contracts. Without a clear and express indication

from Congress, we cannot agree with Hardison and

the EEOC that an agreed-upon seniority system must

give way when necessary to accommodate religious

observances. [Hardison, 432 U.S. at 79]

In the fifteen years since Hardison, federal courts have

had to deal with factually specific issues of whether this

or that accommodation was prohibited by the terms of

a particular labor agreement. It comes as no surprise

that sometimes it is, and sometimes it isn’t. Here, a trial

established that ail accommodations, aside from the Un-

8

ion’s suggested use of “floaters” or TPT’s, would violate

the seniority provisions.'' We respectfully submit that

such fact-specific inquiries are best left to the trial courts.

If there is a split of the Circuits, none of the Circuits

has mentioned it.

Ill. DE MINIMUS COST & RULE 52(a)

Finally, there is the issue of whether the use of a

“floater” or TPT employee would impose more than a

de minimus cost on Chrysler.

The short answer is that the trial Court heard the evi-

dence, and found as a matter of fact that real costs were

involved. The Eighth Circuit affirmed under F.R.Civ.

Pro. 52(a).

These are fact findings of the most routine sort. The

only point of mild scholarly interest are the divergent

theories of cost accounting and, perhaps, economics. Pe-

titioner requires a “billiard ball” economic causation, i.e.,

there is no “cost” unless a particular replacement em-

ployee was hired and a fixed, temporal monetary cost

assigned. The District Court adopted Chrysler's (unsur-

prising) approach that, if overall I need more people to

make cars, and I must pay the same benefits on fewer

productive hours, I've been economically injured. Even

so, aside from theory, the District Court did put a num-

ber on the economic injury.

Interesting or not, this Court is hardly the place to re-

solve competing accounting theories, particularly when the

144The “book” procedure is just another form of seniority.

Seniority is, by definition, “first-come-first-served”’. It is a neutral

way to making competitive decisions about allocation of scarce

resources, here, time off on Friday. Sometimes the negotiators

count the time on a corporate-wide basis, and sometimes on a plant-

wide, department-wide, or classification-wide basis. Here, the

signup book recorded just another form of seniority, measured by‘

“time in the book’’, with all employees subject to the same rules.

9

solution depends on how economic life is lived in a par-

ticular industry.

Nor is there any reason to reach out to reexamine the

meaning of de minimus. The use of a de minimus rule

is What allowed this Court to avoid the First Amendment

establishment issue in Hardison. If the required costs of

accommodation are only de minimus, no justiciable con-

stitutional controversy can arise. A revisitation of Hardt-

son on the de minimus issue will only serve to resurrect

a difficult and divisive First Amendment problem, which

for the most part has lain at rest since Hardison.’

CONCLUSION

For the foregoing reasons, as well as those given by

Chrysler, we respectfully ask the Court to deny the Writ.

Respectfully submitted,

Morris J. LEVIN JORDAN ROSSEN

APPLETON, KRISTMAS, General Counsel

LEVIN & BEATTY M. JAY WHITMAN

8000 Maryland Ave. (Counsel of Record)

Clayton, MO 63105 Associate General Counsel

(314) 721-8685 8000 East Jefferson Ave.

Detroit, MI 48214-2699

(313) 926-5216

Counsel for UAW Local 110

15 The exception is in the area of dues, Wilson v. NLRB, 920

; ;

F.2d 1282, 1290 (6th Cir. 1990) (striking down the “charity option’

!

provision of the NLRA, § 19, 29 U.S.C. § 169, as an unconstitutional

establishment