Reply Brief — United Food & Commercial Workers Local 951 v. Mulder

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No. 94-926 FEB 15 1995

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IN THE | Damec oF we OO

Supreme Court of the United States

October Term, 1994

UNITED FOOD AND COMMERCIAL WORKERS

LOCAL 951, AFL-CIO AND CLC,

; Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Intervenor,

vs.

PHILLIP MULDER, CHARLES BUCK,

and LEON GIBBONS,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITIONER’S REPLY TO BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Tep Iorio

Counsel of Record

CuristinE A. REARDON

Kaniz, Iorio & Fe.pstein, Co., LPA

5550 West Central Avenue

Toledo, Ohio 43635-2170

Telephone: (419) 537-1954

Attorneys for Petitioner

BATAVIA TIMES PRINTING INC.—Telephone (716) 344-2000

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TABLE OF CONTENTS

TABLE OF AUTHORITIES................ i]

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ey a ay Pes 3

TABLE OF AUTHORITIES

Cases:

AT&T Technologies, Inc. v. CWA, 475 U.S.

OOP GER 0k cc cedinnytnsad eee 6,7

Abrams v. Communication Workers of America,

818 F.Supp. 393 (D.D.C. 1993)............. 6,7

Balowski v. International Union UAW, 372

¥ ae ODO te Cir. FORE ccc cecadensneeens 7

Chicago Teachers Union v. Hudson, 475

A Ol 6k +0604 o dene ene eee 3,5

Communication Workers of America v. Beck,

S87 UD. tae (RE 6 0k seeaareeesatee ee 2

Ford Motor Co. v. Huffman, 345 U.S. 330

Lo Per rd FR ee 7

Gateway Coal Co. v. Mineworkers, 414 U.S. 368

(PO os ss 0 0cene ed cdseee eee 7

Hohe v. Casey, 956 F.2d 399 (3rd Cir. 1992).... 5

Hudson v. Chicago Teachers Union, 922 F.2d

1306 (7th Cir.), cert. denied, ____—C— US.

cnssnmmansity ARE MMe EE CHE 66 coe nee eens 4,5,6

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

Kidwell v. Transportation Communications

International Union, 946 F.2d 283 (4th Cir.

1991), cert denied, _ £US. __.,

____-—~«§.Ct. ___, 118 L.Ed.2d 423 (1992).. 3,4,

Litton Financial Printing, ——_ we.

111 S.Ct. 2215 (1991)............---- PO 6

lii

Monroe v. UAW, 723 F.2d 22 (6th Cir.

Patsy v. Board of Regents of Florida, 457

a

Steel Workers v. Rawson, 495 U.S. 362

oe os os who oh ke ow bw wk e Owe

Tierney v. City of Toledo, 917 F.2d 927

Ea ee

Statutes and Rules:

ee

§301 of the Labor Management Relations

Pe WA GIGS ok. ccc cc cencns

No. 94-926

IN THE

Supreme Court of the United States

October Term, 1994

UNITED FOOD AND COMMERCIAL WORKERS

LOCAL 951, AFL-CIO AND CLC,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Intervenor,

vs.

PHILLIP MULDER, CHARLES BUCK,

and LEON GIBBONS,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY BRIEF IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

The Petitioner, United Food and Commercial

Workers Local 951, AFL-CIO and CLC, respectfully

submits the following Reply to Respondents’ Brief

in Opposition to the above-captioned Petition for a

Writ of Certiorari.

2

INTRODUCTION

Tle standard for breach of the duty of fair

repreSntation serves as the foundation for any non-

membr complaint regarding the obligation to remit

union service fees. See Communication Workers of

Amerig v. Beck, 487 U.S. 735, 762-763 (1988).

Urtion service fee arbitrations are subject to the

analytral framework dictated by the duty of fair

represmtation. Hence, the standard for evaluation

of any aspect of non-member union service fee

collectbn is whether the union has acted in an

arbitra, capricious or bad faith manner. See Vaca

v. Sipe, 386 U.S. 171 (1967). This petition presents

a case of first impression, to determine whether

§301 © the Labor Management Relations Act, 29

U.S.C. $185, confers federal jurisdiction to confirm,

modify or vacate service fee arbitration awards

issued pursuant to Communication Workers of

Americ, v. Beck’s mandate. The arguments set

forth ir Respondents’ Brief focus upon the role of

consent in arbitration, and compel this Court to

address two fundamental issues with respect to

whether §301 jurisdiction is warranted: (1) what is

the role of arbitration in non-member service fee

dispute: in general? and (2) in the unique context of

the duy of fair representation, are traditional

notions of “‘consent’’ to arbitration inapplicable?

The folowing brief reply will illustrate that

Respontents’ reliance upon the issue of consent is

misplactd in the context of private sector fee

arbitraton.

3

ARGUMENT

The intended role of arbitration is _ best

illustrated in the analogous law of the public sector,

wherein non-union member constitutional rights

must be protected against state action. In Kidwell

v. Transportation Communications International

Union, 946 F.2d 283, 303 (4th Cir. 1991), cert denied,

eee, > ; S.Ct. , 118 L.Ed.2d

423 (1992), the United States Court of Appeals for

the Fourth Circuit provided a concise summary of

the public sector's judicial path toward upholding

the integrity of fee arbitration.' It is evident from

the Kidwell court’s analysis that the courts may

reserve jurisdiction over any constitutional issues

that may arise. However, if the arbitration

procedure itself is constitutional on its face and as

implemented, then there will not likely be any

residual grounds for judicial challenge pursuant to

42 U.S.C. §1983. For example, the Kidwell court

notes that, in Chicago Teachers Union v. Hudson,

this Court required unions to “provide for a

reasonably prompt decision by an impartial decision

maker,’ and _ established the _ constitutional

minimums for such a procedure, adding that the

“arbitrator's decision would not receive preclusive

effect in any subsequent §1983 action.”’ (Emphasis

added). See Kidwell, 946 F.2d at 283, citing Chicago

Teachers Union v. Hudson, 475 U.S. at 307, 308 n.

21. It follows that only a residual constitutional

violation would trigger a §1983 action.

The Kidwell court also noted that the Sixth

Circuit, in Tierney v. City of Toledo, 917 F.2d 927

(6th Cir. 1990) did not require exhaustion of

‘In Kidwell, the Fourth Circuit declined to rule upon the issue

of arbitration in view of dismissal of the case on other grounds.

4

arbitration prior to bringing constitutional claims in

federal court (though the Court did not define a

“constitutional claim’’). See Kidwell, 946 at 303,

citing Tierney, 917 F.2d at 940. The Kidwell court

quoted most extensively from Hudson v. Chicago

Teachers Union, 922 F.2d 1306 (7th Cir.), cert.

denied, U.S. , 111 S.Ct. 2852 (1991), in

the following analysis:

[T]he court [of appeals] stated that judicial

review without prior arbitration was limited to

ensuring that the proper procedure—fair share

notice, an impartial decision maker to determine

fee amount, and_ escrow _ protection—was

followed. [922 F.2d] at 1314. ‘[T]he singular role

of the federal courts in reviewing the adequacy

of fair share notice is to determine whether the

notice gives the non-union members enough

information to challenge the basis for the fee.’

Id. It noted that, if the decision on fee

calculation was adverse to the plaintiffs, they

could seek review in the federal courts. Jd. It

refused to become involved in more specific

determinations and micromanagement prior to

arbitration.

See Kidwell, 946 F.2d at 303. Significantly, the

Seventh Circuit’s Hudson decision does not mention

any individualized ‘‘consent’’ to arbitration by the

objecting non-union members.

The Kidwell court's gathering of precedents on

the issue of fee arbitration highlights several key

elements in the judicial policy underlying fee

arbitration—elements which the Respondents

disregard. First, the very fact that this Court

established constitutional guidelines for fee

5

arbitration procedures is itself significant.? Further,

the fact that the federal courts retain residual

jurisdiction over constitutional (i.e. $1983) claims is

secondary to the goal that a facially constitutional

procedure, constitutionally implemented, should

leave behind no residual constitutional claims for

the courts to adjudicate.* Hence, the Seventh Circuit

specifically directed arbitration first, and judicial

review second.‘

Appiying the analogous law of the public sector

to the facts presented, if a private sector arbitration

procedure conforms facially to the duty of fair

representation, and is implemented in accordance

with the duty of fair representation, then said

procedure should be entitled to the same deference

afforded any other labor arbitration proceeding

undertaken under the duty of fair representation.

The Respondents’ ‘“‘choice of fora’ argument

presumes that all union service fee calculations will

violate the duty of fair representation. This

“presumption” is evident from Respondents’

* See Chicago Teachers Union v. Hudson, 475 U.S. at 310.

* The same reasoning renders Respondents’ citation of Hohe v.

Casey, 956 F.2d 399 (3rd Cir. 1992) inapposite. Hohe, a public

sector case, premises its rejection of the arbitration procedure

upon the prohibition against exhaustion requirements in §1983

cases. See e.g. Patsy v. Board of Regents of Florida, 457 U.S.

496, 516 (1982); Hohe, 956 F.2d at 408, 409. Petitioner does not

dispute that constitutional issues will always have a forum in

the federal courts, notwithstanding the existence of arbitration

procedures. However, this point presumes that constitutional

issues remain as a result of the drafting or implementation of

the arbitration procedure.

*See Hudson v. Chicago Teachers Union, 922 F.2d 1306 at

1314.

|

6

unwillingness to even countenance the possibility

that the duty of fair representation (a far lesser

standard than the constitutional standard found in

the public sector) could ever be met through a fairly

conducted arbitration procedure.

It is clear from the analogous law of the public

sector, emanating frorn this Court's decision in

Hudson, that constitutional guidelines for fee

arbitration procedures were not established merely

to provide a costly and meaningless prelude to

litigation. If such procedures can adequately protect

the constitutional rights of public sector objectors,

while, at the same time, eliminate the need for

courts to ‘‘micromanage’’ fee calculations, then it is

clear that arbitration of fee disputes in the public

sector was intended to carry some meaningful effect.

Respondents’ Brief avoids discussion of the

proper foundation for analysis—to wit: whether a

union has acted in an arbitrary, capricious or bad

faith manner toward a non-member. See Vaca ov.

Sipes, 386 U.S. 171 (1967). The unique context of

fee-arbitration, in view of the duty of fair

representation standard, renders inapposite the

Respondents’ reliance upon A T&T Technologies,

Inc. v. CWA, 475 U.S. 643 (1986) and Litton

Financial Printing, ____ U.S. , 111 S.Ct.

2215 (1991). The decision of the District Court for

the District of Columbia in Abrams _v.

Communication Workers of America, 818 F.Supp.

393 (D.D.C. 1993), is also unpersuasive for its

reliance upon the same precedents. The Abrams

court's characterization of the fee dispute resolution

process before it as ‘‘forced arbitration’ ignores the

judicially affirmed role of arbitration in service fee

7

disputes, and makes an inappropriate analogy to

employer/union arbitration agreements. The Abrams

court erroneously concluded, as do Respondents,

that cases such as Gateway Coal Co. ov.

Mineworkers, 414 U.S. 368 (1974) and AT&T

Technologies, require the consent of non-union

members to service fee arbitrations. However, in

Gateway Coal and AT&T Technologies, the ‘‘no

strike’’ clause, and other significant consideration,

serve as the contractual quid pro quo for the

grievance arbitration mechanism between the

employer and the union.

Respondents dwell extensively on the issue of

individualized consent, even though ‘“‘lack of

consent”’ is not even addressed as a significant issue

in public sector decisions which are subject to the

higher constitutional standard. Consent is even less

of an issue under the standard for duty of fair

representation. The decisions of this Court, long

followed, have afforded unions ‘‘a wide range of

reasonableness’ in the dispatch of the duty of fair

representation. See e.g. Steel Workers v. Rawson,

495 U.S. 362 (1990); Humphrey v. Moore, 375 U.S.

335 (1964) and Ford Motor Co. v. Huffman, 345 U.S.

330 (1953). Indeed, in the context of the duty of fair

representation, employees are required to exhaust

the grievance procedure even’ though said

employees, as ‘‘individuals,’’ might prefer to have

their cases heard directly in the federal courts

without having to exhaust arbitration. See Monroe

v. UAW, 723 F.2d 22 (6th Cir. 1983). Indeed, a

union may be deemed to have fully executed its

duty of fair representation even where it refuses to

arbitrate. See Balowski v. International Union

UAW, 372 F.2d 829 (6th Cir. 1967). A union's

8

processing of any type of grievance or dispute to

arbitration in good faith fully complies with the

duty of fair representation.

Thus, Respondents’ focus on the “choice of

fora’ issue begs the question of whether a fairly

drafted and _ fairly implemented arbitration

procedure will even leave behind a residual duty of

fair representation question to be litigated in any

forum. It is entirely appropriate and consistent with

prior case law governing the duty of fair

representation that a grievance procedure may serve

to fully discharge the duty of fair representation if

appropriately drafted and administered.

Accordingly, said arbitration award should be

entitled to the same statutory appeal mechanism as

other arbitration awards emanating from the federal

policy of labor stability, which is the foundation of

$301 of the Labor Management Relations Act.

9

CONCLUSION

The arguments raised in the Respondents’ Brief

in Opposition are unpersuasive, and exemplify the

need for this Court’s review of the important issues

presented by the case below. For the reasons stated

herein and in its Petition, Petitioner United Food

and Commercial Workers Union Local 951

respectfully requests that this Court issue a Writ of

Certiorari to the United States Court of Appeals for

the Sixth Circuit.

Respectfully submitted,

Tep Iorio

Counsel of Record

CuristINE A. REARDON

Ka.niz, Iorio & Fetpstein, Co., LPA

5550 West Central Avenue

Toledo, Ohio 43635-2170

Telephone: (419) 537-1954

Attorneys for Petitioner