# Petition for Writ of Certiorari — Association of Frigidaire Model Makers v. General Motors Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 860

## Text

October Term, 1994
ASSOCIATION OF FRIGIDAIRE MODEL MAKERS, et al.,

Petitioners,

vs.

GENERAL MOTORS CORPORATION, et ai.,

Respondents.

Petition for Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

DAVID L. HALL
Counsel of Record
FLANAGAN LIEBERMAN
HOFFMAN & SWAIM
Attorneys for Petitioners
318 West Fourth Street
Dayton, Ohio 45402
(513) 223-5200 ;

6982

(800) 3 APPEAL + (800) 5 APPEAL « (800) BRIEF 21
ervices, inc.

eer onan aS OE P< See ee wr re b i —

QUESTIONS PRESENTED FOR REVIEW

I. Whether this Court in Airline Pilot's v. O’Neill, 111 S.Ct.
127 (1991), merely clarified the law applicable to breach of
contract and breach of duty of fair representation cases pursuant to
29 U.S.C. § 185(a) (1947) or whether the Airline Pilot ‘'s decision
announced a change in the law.

II. When does a judgment in the liability phase of a
bifurcated trial become final so that it is the “law of the case”?

III. Whether Petitioners have been denied due process under
the Seventh Amendment of the United States Constitution due to
the unreasonable delays by the lower court in deciding post trial
motions.

LIST OF PARTIES
Petitioners:

Association of Frigidaire Model Makers, Billie N. Scherer,
Enos O. McNeeley, James E. Minter, Harry M. Simpson, William
A. Shaw, Dale L. Frederick, Robert P. Ruth, Arthur V. Holz, M.L.
Withrow, Jere M. Utz, Paul B. Scott, Donald M. McWhirter,
Rankin C. Long, Kenneth R. Henness, Herbert C. Douglas, Jack
C. Brewer, Jr., Estate of Richard E. Wells, Phillip K. Harris,
Michael Irwin Davis, Gary L. High, James G. Strausbaugh, Gary
D. Saunders, Gary E. Wright, Larry Hackathorne, David D. Flora,
Vernon A. Lawson, Henry C. Gottwald, Wesley M. Myers, Donald
S. Bowman, Rosemary Bowman Theis, Sam Freeman, Carol
George, Robert Guenther, Stanley J. Hake, J.R. Hock, Estate of Al
Henderson, Betty Irwin; G.P. Jones, A.L. Leach, Jerry Monnin,
Barney Monnin, W.R. Morter, Estate of Carl A. Schreier, Paul
Scott, Charles Shanyfelt, Terry Copsey, Art Whisman, Estate of
Don Thill, Harry Glaser, Bruce Fryman, Sue Gilbert, Richard
Gruver, Glen Musen. :

Respondents:

General Motors Corp. and International Union of Electrical,
Radio and Machine Workers, Local 801 AFL-CIO-CLC.

tii

TABLE OF CONTENTS
Page
Questions Presented forReview .................... i
coe BS ESSE Tan as en ii
WN x fieeis 60. sec bcus eit. ok iii
IEEE He age Miveren lii
one a apg OD GNSS EES ea 2
Statement of Jurisdiction .......................... 2
Constitutional Provision, Statutes, and Rule Involved ... 2
cee eee ae 4
Reasons for Granting the Writ ...................... 10
I. TheAirline Pilot's only clarifiedthelaw ........ 10
Il. The final judgment of the liability phase ........ it
Il. The SeventhAmendmentIssue ............... 15
see ug dh CEE ED TEP eee 17
TABLE OF CITATIONS

Cases Cited:

Ackley v. Local 337, International Brotherhood of
Teamsters, 948 F.2d 267 6 S|) irra. 13

iv

Contents
Page
Airline Pilot’s v. O’Neill, 499 U.S. 65 (1990), 111 S. Ct.

Sr CR aw 5 Rass ee ec keke i, 8,9, 10, 11, 12, 13
Arizona v. California, 460 U.S. 605 (1983) ............ 14
Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573 (6th

Ce: Fe kb vac ccwenne kebeass thee 13
Del Costelio v. Teamsters, 462 U.S. 151(1983) ......... 5,6
Ford Motor Company v. Huffman, 345 U.S. 330(1953) .. 11
Le’Mon v. National Labor Relations Board, 499 U.S. 933

ORDO oink os cabs vk c Pea teke as tee 13
Logan v. Zimmerman, 455 U.S. 422 (1981) ............ 15
Nida v. Plant Protection, 7 F.3d522 (1993) ............ 13
Rakestraw v. United Airlines, Inc., 989 F.3d 947 (7th Cir.

1, & ) ee ates Dn SRN IND S Betcha rp TID: Regret Heatran. SEMEN A 13
Vaca v. Sipes, 386 U.S. 171 (1967) .......... eee e wees 11

White v. Murtha, 377 F.3d 428 (Sth Cir. 1968) .......... 14
Statutes Cited:
Be Uh. ED 6 ab ww pie 0 bes oewey coNtES 2
DUSK. Se. heh ie eh se ks 5

Oe a ee eS ee TT

Vv

Contents
Page
29 U.S.C. § Pe i et i, 2,3, 4,5, 10, 13, 14
United States Constitution Cited:
gate siosctoigemooaress.. MOREE CO EE TOT i, 2, 10, 15
Rule Cited:
Federal Rule of Civil Procedure OP Soca... os cae 3,9, 14
Other Authorities Cited:
Professor John E. Rumel, The Hourglass and Due Process,
26 U. San Francisco L. Rev. 237 (Winter, 1992) ...... 16
Case Note, Notice of Entry of Final Judgments, 58 Cin. L.
HOW. SONS CR NOG) ois oe ee 16
APPENDIX
Appendix A — Decision of the United States Court of
Appeals for the Sixth Circuit Filed March 31 |. Se la
Appendix B — Decision and Entry Sustaining Defendants’
Renewed Motion for J udgment Notwithstanding the
Verdict of the United States District Court for the
Southern District of Ohio Filed December gi, i9e2... Se

Appendix C — Report and Recommendation of the United
States Magistrate Judge Filed December 30,1991 .... 220

vi

Contents

Appendix D — Decision and Entry Overruling Renewed
Motion for New Trial and Motion for Judgment
Notwithstanding the Verdict and/or for New Trial of
United States District Court for the Southern District of
Clio PeseG FamOS, TFG occ cectccessscedase vagy «

Appendix E — Addendum to the Decision and Entry
Affirming the Verdict of the Jury (Filed July 1, 1988) of
the United States District Court for the Southern District
of Ohio Filed July 15, 1968 2... cccccccccccsccscces

Appendix F — Decision and Entry Affirming the Verdict of
the Jury (With) Order of Reference to United States
Magistrate of the United States District Court for the
Southern District of Ohio Filed July 1, 1988 .........

Appendix G — Decision of the United States Court of
Appeals for the Sixth Circuit Filed July 18, 1988 .....

Appendix H — Decision and Entry Sustaining Defendants’
Motions for Judgment Notwithstanding the Verdict of
the United States District Court for the Southern District
of Ohio Dated September 21,1983 ................

Appendix I — Judgment Entry on a Jury Verdict of the
United States District Court, Southern District of Ohio
PEG I A Fes es 6c ive Cehotnddndnnaes betes

Page

35a

37a

No.

In The

Supreme Court of the United States

——

October Term, 1994
ASSOCIATION OF FRIGIDAIRE MODEL MAKERS, etai.,
Petitioners,
VS.
GENERAL MOTORS CORPORATION, et al.,

Respondents.

Petition for Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

The Association of Frigidaire Model Makers, et al., the
Petitioners herein, respectfully pray that a Writ of Certiorari issue
to review the judgment of the United States Court of Appeals for

the Sixth Circuit entered in the above entitled case on March 31,
1995.

2

OPINIONS BELOW

The March 31, 1995 opinion of the Sixth Circuit Court of
Appeals whose judgment is herein sought to be reviewed is
reported at Case Nos. 93-3 184/3245/3645/3697, which Decision
is unpublished and is reprinted in the separate appendix to this
Petition at pages 1a-14a. The prior opinion of the United States
District Court for the Southern District of Ohio entered
December 31, 1992 and is reported at Case No. C-3-81-343, is
unpublished and is reprinted in the separate Appendix to this
Petition at pages 15a-21a.

STATEMENT OF JURISDICTION

The judgment of the United States Court of Appeals for the
Sixth Circuit was entered on March 31, 1995. The jurisdiction of
this Court is invoked pursuant to 28 U.S.C. § 1254(1) (1988).

CONSTITUTIONAL PROVISION, STATUTES,
AND RULE INVOLVED

U.S. Const. amend. VII.

In Suits at common law where the value in ]
controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise re-
examined in any Court of the United States,
than according to the rules of the common
law.

The Labor Management Relations Act
(29 U.S.C. § 185(a) (1947)).

Suits for violation of contracts between an

3

employer and a iabor organization
representing employees in an industry
affecting commerce as defined in this Act, or
between any such labor organizations, may be
brought in any district court of the United
States having jurisdiction of the parties,
without respect to the amount in controversy
or without regard to the citizenship of the
Renewal for Motion for Judgment After
Trial: Alternative Motion for A New Trial
(Fed. R. Civ. P. 50(b)).

Whenever a motionforajudgmentasamatter .
of law made at the close of all the evidence is”
denied or for any reason is not granted, the
court is deemed to have submitted the action
to the jury subject to a later determination of
the legal questions raised by the motion. Such ...
a motion may be renewed by a service and
filing not later than ten days after entry of
judgment. A motion for a new trial under Rule
59 may be joined with a renewal of the motion
of judgment as a matter of law, or a new trial
may be requested in the alternative. If a
verdict was returned, the court may, in
disposing of the renewed motion, allow the
judgment to stand or may reopen the
judgment and either order a new trial or direct
the entry of judgment as a matter of law. If no
verdict was returned, the court may, in
disposing of the renewed motion, direct the
entry of judgment as a matter of law or may
order a new trial.

4

STATEMENT OF THE CASE

This case began in February, 1979 when General Motors
Corporation sold its Frigidaire operations in Dayton, Ohio.
General Motors did not sell the physical facility, instead it began
converting the physical facility to Chevrolet manufacturing
facil‘ties. At the time of the sale of the operations, employees of
Gene:‘al Motors Corporation were represented by The
Interriational Union of Electrical, Radio and Machine Workers,
AFL-CIO-CLC and by its Local Union 801.

For the purpose of completing the conversion, the Unions
and the Company entered into several agreements which affected
or impacted then current Labor Agreements (both local and
national) and set forth procedures for utilizing bargaining unit
members to perform or assist in performing the conversion work.

Over two years after the announcement of the sale forty-nine
employees of General Motors formed the Association of
Frigidaire Model Makers for the purpose of protecting the
interests of these former and/or current General Motors
employees and filed a Complaint in the United States District
Court for the Southern District of Ohio. That Complaint named as
Defendants General Motors Corporation, The International
Union of Electrical, Radio and Machine Workers, and its Local
Union 801. The Complaint was a hybrid § 301 action (29 U.S.C.
§ 185(a)) and it alleged breach of the Labor Agreement as well as
breach of duty of fair representation.

For the purposes of trial, the court recommended and the
parties consented to a bifurcated trial in which liability issues
would be determined before the issues related to damages would
be addressed.

On June 15, 1982, the jury trial commenced in the United

(NN

5

States District Court on the liability issues only'. The liability
issues were whether the Labor Agreement had been breached and
whether the unions had committed violations of § 301 by failing
to properly represent the Petitioners. Petitioners alleged, among
other things, that a labor agreement was entered into pursuant to
which Petitioners were to be immediately reclassified and
recalled, along with other former General Motor employees, to
perform work related to the conversion of the physical facility
and installation of new equipment. This immediate
reclassification and recall would give the recalled employees
Chevrolet seniority immediately upon recall. The recalled
employees would be eligible for recall in line with their plant
seniority as well as skilled trade seniority. All employees,
including skilled employees were to be reassigned to
classifications of available skilled trades which would be utilized
in the manufacturing process in the new Chevrolet operation.

On June 23, 1982, a jury returned a verdict in favor of the
Petitioners on the liability issues. Then began the first of several
judicial delays which ultimately resulted in non-suiting the
Petitioners nearly thirteen years after a verdict was returned in
their favor, and seven years after the Court of Appeals affirmed
that verdict. Respondents timely filed a Motion for a New Trial
and a Motion for Judgment Notwithstanding the Verdict in J uly,
1982. These motions remained “pending” in the district court
with no decision until September, 1983, some fifteen months
after the verdict was returned. In the meantime, the United States
Supreme Court issued its decision in Del Costello v. Teamsters,
462 U.S. 151 (1983). In Del Costello, this Court applied the six
month statute of limitation contained in the National Labor
Relations Act (29 U.S.C. § 160(b) (1934)), because there is no
specific statute of limitations otherwise applicable. This was a

1. On the day the trial commenced Respondents were permitted to file an
amended answer raising, for the first time, a statute of limitations defense.

6

change in the law because federal courts had been applying
various common law statutes. The Del Costello decision
impacted on the post trial motions because included was the
statute of limitations issue which the Court permitted the
Defendants to raise the morning trial commenced. The district
court issued its decision setting aside the jury verdict and
dismissing the Complaint based upon the statute of limitations in
September, 1983. Thus, the Appellants became a victim of the
lower courts inaction because their verdict was set aside by
“new” law ultimately found not to bar their claim. This initial
fifteen month delay ultimately became a seven year delay which
finally resulted in a non-suit.

The Petitioners appealed this decision to the Sixth Circuit
Court of Appeals and the Respondents cross appealed. A decision
in favor of the Petitioners was rendered by the Sixth Circuit Court
of Appeals on July 18, 1985 remanding the matter back to the
lower court. The remand was for the purpose of determining
whether the action of the Petitioners, in filing grievances which
were never processed by the Union, was in good faith and thus
tolled the running of the statute of limitations. The specific
applicable language is:

The Model Makers case is remanded to the
district court for a determination whether
Plaintiffs’ January, 1981 attempt to file
grievances prevented accrual of their claim
until that time.

(App. 59a).

If the lower court found that issue favorable to the
Petitioners then the Court of Appeals determined that there was
sufficient evidence to support the jury verdict in favor of the
Petitioners:

7

In the Model Makers case, plaintiffs properly
produced evidence that General Motors
agreed to immediately reclassify the
plaintiffs and failed to do so and the union
represented the Model Makers in an arbitrary
or perfunctory manner; we reject defendants’
contention that arbitrariness is an
inappropriate standard to apply to union
conduct when negotiating contract
provisions. The evidence of a claim was far
from uncontroverted, but it was sufficient to
sustain a jury verdict.

(App. 58a).

The remand occurred July 22, 1985. The lower court
instructed briefs to be filed to address the issues and the matter
again remained “pending” before the district court from July,
1985 until July, 1988 (three years) until the court made its
Decision and Entry Affirming the Verdict of the J ury. (App. 39a).

For three years Petitioners waited for a ruling from the court
on the remanded question. When it came, for the second time the
_ Petitioners had prevailed ona jury verdict and for the second time
the matter was referred to the Magistrate to assess damages and
affix seniority rights and obligations of the parties. The matter
went before the Magistrate to determine damages, seniority
rights, and other relief to which Petitioners were entitled and the
trial to the Magistrate (sitting without a jury) on the damages
issue began November 13, 1989 and concluded December 12,
1989. In July, 1990 the Magistrate Judge issued a Report and
Recommendation finding, among other things, that the jury did
not decide the issues of whether the Model Makers were
contractually entitled to work during the tear down or whether

8

any particular Petitioners were improperly reclassified’ and the
Court should, therefore, find that General Motors did not violate
the shut down agreement by failing to work the Model Makers
during the tear down period. The Magistrate Judge also assessed
damages and made other recommendations concerning relief in
that Report and Recommendation.

Objections to this Report were filed by all parties by
September 18, 1990. The Magistrate Judge’s Report and
Recommendation was re-committed to the Magistrate Judge for
determination of objections. The Magistrate Judge issued a
Supplemental Report and Recommendation adhering to his prior
Report and Recommendation without comment on March 25,
1991. By April 8, 1991 all parties had again filed objections to the
Supplemental Report and Recommendation.’

On May 28, 1991, Respondents filed a renewed Motion for
Judgment Notwithstanding the Verdict, relying on this Court’s
decision in Airline Pilot’s v. O’Neill, 111 S. Ct. 127 (1991). In
December, 1991 the Magistrate Judge issued a new Report and
Recommendation recommending that the Motion of the
Respondents be sustained. This Report and Recommendation
was again re-committed by the Court to the Magistrate Judge
who, on June 16, 1992 issued a Report and Recommendation
recommending that the Respondents’ Motion for Judgment
Notwithstanding the Verdict be granted and the Complaint be
dismissed with prejudice. After appropriate objections were filed
by all parties on December 31, 1992, ten and one half years after
the first jury verdict, the Petitioners were again non-suited

2. This finding is in direct contradiction to the above quoted language
from the Court of Appeals.

3. These Objections to this Report and Recommendation have never
been ruled on due to the subsequent rulings on the renewed motion.

aa ceeieiianaieiiniiemiaiiaiiiea tii

9

because the lower court considered that there was no “law of the
case”. The Court concluded that the Airline Pilot’s case changed
the law and then applied this “change” retroactively to the
substantive issues of this case, thus overruling issues which had
previously been affirmed by the Sixth Circuit Court of Appeals in
1985.

On appeal, the Sixth Circuit Court of Appeals affirmed the
decision of the district court.

The Court of Appeals was of the opinion that there was no
law of the cause because there was no final judgment as defined
by Fed. R. Civ. P. 50(b). Thus, the motions attacking a jury verdict
rendered eleven years earlier (a verdict which had already been
reviewed and affirmed by the Court of Appeals) was appropriate
because that verdict had not become final. It was also the opinion
of the Sixth Circuit Court of Appeals that its remand in 1985 did
not operate to reinstate the July 26, 1982 judgment, a conclusion
difficult to comprehend since this Court reached the conclusion
that if the remanded issue (the 1981 attempt to file grievances)
was found in favor of the Petitioners then there was sufficient
evidence to support the jury verdict in favor of the Petitioners.

On the other issues, the Court of Appeals did agree that the
question of whether there was a final judgment was of
significance only if the Court’s decision in Airline Pilot's
announced a new rule or a change in the law. The Sixth Circuit
Court of Appeals concluded that Airline Pilot’s does set forth a
change of law, which permitted the Court of Appeals to affirm the
lower court’s decision’. The Sixth Circuit Court of Appeals

4. Neither the lower court nor the Court of Appeals addressed Petitioners
right to a new trial if the “new” law required additional evidence. Since the
basis for setting aside the judgment is a result of the weighing of the evidence, ~
Petitioners should be given the opportunity of presenting evidence to meet the
new law.

10

addressed the Seventh Amendment issue only tangentially,
making the observation that the delays were due in part to the
parties’ decisions so that “any injustice or outrage is self
inflicted” and that “both sides have nobody to blame but
themselves”. (App. 14a). The record in this case as above
narrated speaks to the contrary.

REASONS FOR GRANTING THE WRIT

The judgment of the United States Court of Appeals for the
Sixth Circuit should be reviewed by this Court because it brings
to this Court three unique questions that should be addressed.
Research does not disclose that any of these questions have
previously been specifically addressed by this Court. These
questions are:

1. Does this Court’s decision in Airline Pilot’s express a
contrary view of the law applicable to § 301 cases?

2. When does a judgment on the liability issues in a
bifurcated jury trial become the law of the case?

3. When does judicial delay become so significant that it
adversely affects the rights of the parties?

I.
THE AIRLINE PILOT’S ONLY CLARIFIED THE LAW

When this Court announced its decision in Airline Pilot's it
began with the following statement:

We granted certiorari to clarify the standard

that governs a claim that a union has breached
its duty of fair representation in its

Te

11

negotiation of a back-to-work agreement
terminating a strike. We hold that the rule
announced in Vaca v. Sipes, 386 U.S. 171, 190
(1967) — that a union breaches its duty of fair
representation if its actions are “arbitrary,
discriminatory, or in bad faith” — applies to
all union activity, including contract
negotiation.

Airline Pilot's v. O’Neill, 499 U.S. 65, 67 (1990). (Emphasis
added).

In addition to citing Vaca, the Court also drew upon Ford
Motor Company v. Huffman, 345 U.S. 330 ( 1953), to reaffirm that
the tri-pronged elements of a breach of duty of fair representation
will remain arbitrary, discriminatory or bad faith conduct of a
union.

This Court also made it clear that the Airline Pilot's decision
was only clarifying the language applicable to the “arbitrary”
prong of the tripartite standard.

We further hold that a union’s actions are
arbitrary only if, in light of the factual and
legal landscape at the time of the union’s
actions, the union’s behavior is so far outside
“a wide range of reasonableness” [cite
Omitted] as to be irrational.

Id. at 67.

We are persuaded, however, that the Court of
Appeals further refinement of the
arbitrariness component of the standard
authorizes more judicial review of the

12

substance of negotiated agreements than is
consistent with national labor policy.

Id. at 77.

Clearly mindful of this Court’s language that the
arbitrariness standard was merely being “clarified” the Sixth
Circuit Court of Appeals attempted to rationalize its refusal to
follow this instruction by arguing:

While the Court characterized its decision in
Airline Pilot’s as “clarifying” the duty of fair
representation standard, this Court saw it in
Ackley v. Local 337, International
Brotherhood of Teamsters, 948 F.2d 267 (6th
Cir. 1991), as enough of a change in existing
circuit law to warrant vacating a decision it
had held for rehearing, pending the outcome
of Airline Pilot’s.

(App. 11a).

The Sixth Circuit’s analysis in the above quoted section of its
decision fails to properly apply Airline Pilot’s in two significant
ways. First of all, it applies the Airline Pilot’s decision across the
board to the “duty of fair representation standard” rather than to
just the arbitrary prong of that standard. Secondly, it
recharacterizes this Court’s statement it was “clarifying” the
arbitrary prong of the standard and defines this Court’s language
as expressing “a change in existing circuit law”.

In addition to suffering from the misapplication of Airline
Pilot’s by the Sixth Circuit, Petitioners submit that decisions of
both the Sixth and Seventh Circuit Courts of Appeal demonstrate
conflict and confusion among, between and within the Circuits.

i aaeeminmiadaaaiaaaaiaiiais

13

For example, the Sixth Circuit now applies Airline Pilot's across
the board to all three prongs of the breach of duty of fair
representation claim (See Nida v. Plant Protection, 7 F.3d 522
(1993)) and dissent of Judge Boggs in Ackley, infra at 268; or,
maybe in the Sixth Circuit whether Airline Pilot’s applies to just
the arbitrary prong or to all three prongs is determined by which
panel of judges is assigned to the case. See Black v, Ryder/P.1.E.
Nationwide, Inc., 15 F.3d 573 (6th Cir. 1994),

The Seventh Circuit’s recent decision in Rakestraw v. United
Airlines, Inc., 989 F.3d 947 (7th Cir. 1993), an en banc decision,
shows the same lack of understanding and consistency of
application. In Rakestraw two judges (Judges Flaum and Ripple)
dissented from the application of Airline Pilot’s by the majority.
The dissent there pointed out that the majority opinion deviated
from the established law that this Court has set for § 301 cases.
The deviation occurred where the Court failed to evaluate the
three pronged test separately. Id. at 945. Now, in Nida infra, Black
infra, and in the instant case the Sixth Circuit has joined the
Seventh Circuit in misapplying Airline Pilot's. As pointed out in
the Rakestraw dissent the Seventh Circuit (and now the Sixth
Circuit) is in conflict with other circuits by deviating from the
established law of the Supreme Court. /d. at 947.

Thus, whether Airline Pilot's represents new law and
whether it applies to only one or all three prongs of the breach of
duty standard is not controlled by the law as established by the
Supreme Court, at least in the Sixth and Seventh Circuits, but is a
function of which panel of judges is assigned to hear the case. The
failure of a circuit court to apply the law established by the
Supreme Court requires vacating and remanding the action,
which the Court did for the Tenth Circuit in Le’Mon v. National
Labor Relations Board, 499 U.S. 933 ( 1991).

Petitioners submit that the confusion and conflict between

14

the Circuits and among the judge’s within the Circuits commends
this case for certiorari toe clarify once and for all the application of
the standard applicable to § 301 cases.

II.
THE FINAL JUDGMENT OF THE LIABILITY PHASE

Petitioners’ position on this issue is quite simple. This Court
should also establish the principle that a verdict rendered in the
liability phase of a bifurcated trial is final for all purposes, when a
judgment on the verdict is recorded. Petitioners submit that a jury
verdict recorded July 26, 1982 that is sufficiently final to be
appealed and reaffirmed by the Court of Appeals is, therefore,
sufficiently final to become the law of the case. As a result,
motions which are to be filed within ten days after the entry of
judgment are not timely filed when filed three years later.
“Changes in the law” which are announced subsequent to the
filing of judgments on the liability issues in bifurcated cases
cannot be used to intrude into the finality of that judgment. See
Arizona v. California, 460 U.S. 605 (1983) and White v. Murtha,
377 F.2d 428 (Sth Cir. 1968).

Even the Court of Appeals acknowledges that there is a
judgment for the purposes of finality under Rule 50(b) if an
appeal lies therefrom. (App. 8a). This case was appealed. The
Respondents cross-appealed attacking the sufficiency of the
evidence to support a jury verdict. The Court of Appeals, in 1985,
expressly dealt with that issue finding that there was sufficient
evidence to support the jury verdict.

The point of departure between the instant case and the
authorities relied upon by the Court of Appeals is that there was a
final judgment issued in this case on July 26, 1982. (App. 67a).
That final judgment was reaffirmed by the Court of Appeals and

15

the district court in subsequent proceedings. It should not require
the filing of a second final judgment order to establish the law of
the case as to the liability phase of the bifurcated trial.

It is submitted that this Court should grant certiorari to
establish a clear statement of federal law applicable to bifurcated
trials and to correct the error of the court below in the instant case.
Such a rule will prevent other parties similarly situated (who
consent to bifurcated trials) from becoming victimized where
intervening delays, whether due to judicial inaction or the result
of regular court process, subject a prevailing party to being non-
suited by a subsequent change in the law. x

III.
THE SEVENTH AMENDMENT ISSUE

Petitioners herein contend that because of the judicial delays
which have occurred in this case, they have been denied their
right to a trial by jury. Their right to a trial by jury was afforded to
them in June, 1982.5 Judicial delays (that is the inaction of the
district court on the occasions identified in the statement of the
case) served to deny the prevailing parties their right to trial by
jury. It wastes the time and energy, not only of the parties, but also
the jurors who serve at a great sacrifice. There was a fifteen
month delay between the entry of the judgment in favor of the
Petitioners in July, 1982 and the September, 1983 decision of the
district court on the Motions for a New Trial and J udgment
Notwithstanding the Verdict. There was a three year delay
between the time the Court of Appeals remanded the case back to
the district court and the time the district court issued its decision
on the remanded issue. There were delays of six to twelve months
in the committing and re-committing Reports and

5. This is a federally recognized and protected right. See Logan vy.
Zimmerman, 455 U.S. 422 ( 1981).

16

Recommendations back to the Magistrate and a delay between
the time of the Report and Recommendation of the Magistrate
and the final decision of the district court on the Magistrate’s
Report and Recommendation. Quite contrary to the suggestion of
the Court of Appeals, none of the above stated delays were
instigated by the parties to the litigation, unless one construes the
filing of an Answer and a Complaint as instigating judicial
delays.

Judicial delays and their tragic consequences as
demonstrated by the instant case have become a matter of
increasing concern. In a recent law review article, Professor John
E. Rumel, The Hourglass and Due Process, 26 U. San Francisco
L. Rev. 237 (Winter, 1992), pointed out that in addition to the
named parties there is an unnamed party in every law suit and that
unnamed party is the public. He pointed out, drawing from some
judicial authorities who were concerned about the speedy
resolution of civil disputes, that public resources can be
squandered if judicial proceedings are allowed to proliferate for
unreasonable periods of time. The publics belief in the integrity
of the judicial system becomes severely challenged if there is no
definite and ascertainable point of time when litigation shall
become ended. Case Note, Notice of Entry of Final Judgments,
58 Cin. L. Rev. 1043, 1060 (1990).

Of course, this issue does not have to be reached if the Court
grants certiorari on the other two questions presented. This issue
is, nevertheless, important and significant to all citizen litigants,
witnesses and jurors. A judicial process which demands the
timely performance of functions by jurors, witnesses and parties
but then itself fails to perform its functions in a reasonable and
timely manner justly subjects itself to questions of its fairness,
impartiality, trust and judiciousness. These criteria are necessary
for a social institution, charged with providing an accessible
means of resolving disputes, to earn and retain the respect of the
citizens it serves, and to properly fulfill its function.

17
CONCLUSION

For the foregoing reasons, the Petitioner respectfully prays
that this Petition for Writ of Certiorari be granted.

Respectfully submitted,

DAVID L. HALL

Counsel of Record
FLANAGAN LIEBERMAN
HOFFMAN & SWAIM
Attorneys for Petitioners

318 West Fourth Street
Dayton, Ohio 45402

(513) 223-5200

la

APPENDIX A — DECISION OF THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED MARCH 31, 1995
NOT RECOMMENDED FOR PUBLICATION
Nos. 93-3184/3245/3645/3697

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

ASSOCIATION OF FRIGIDAIRE MODEL MAKERS, et al.,
Plaintiffs-Appellants,
v.
GENERAL MOTORS CORP. and INTERNATIONAL UNION
OF ELECTRICAL, RADIO, & MACHINE WORKERS,
LOCAL 801, AFL-CIO-CFC,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: MARTIN and BOGGS, Circuit Judges; and
FORESTER, District Judge°

PER CURIAM The plaintiffs (“the Model Makers”) are a

* The Honorable Karl S. Forester, United States District Judge for the
Eastern District of Kentucky, sitting by designation.

2a

Appendix A

group’ of skilled tradesmen formerly employed as model makers
by the now-defunct Frigidaire Division of defendant General
Motors Corporation (“GM”). They appeal the district court’s
entry of judgment as a matter of law dismissing their hybrid § 301
breach of agreement/duty of fair representation claim against GM
and co-defendant International Union of Electrical, Radio &
Machine Workers, Local 801, AFL-CIO-CLC (“the Union”).

The Model Makers make three arguments on appeal: (1)
Federal Rule of Civil Procedure 50(b) precludes consideration of
the defendants’ renewed motion for judgment as a matter of law;
(2) the district court violated the “law of the case” by applying Air
Line Pilots Ass’n Int'l v. O'Neill, 499 U.S. 65 (1991); and (3) the
district court deprived the plaintiffs of due process by denying
them expeditious resolution of this case. We reject these
arguments and affirm the district court’s dismissal of this case.

I.

This appeal comes to the court with a tortured past.” Briefly,

1. There seems to be a question of how many people are suing the defendants.
Petitioners refer to forty-nine plaintiffs, respondents state that there are forty-eight,
and our count of those listed in the complaint is fifty-two (including the estates of
eight who have died).

2. After the district court entered the final judgment on its docket sheet on
December 31, 1992, plaintiffs filed their first notice of appeal (No. 93-3097) on
January 28, 1993, within the thirty days allowed by Fed. R. App. P. 4(a)(1).
However, they improperly identified the party taking appeal as “Association of
Model Makers, et al.” instead of listing each party individually. On February 16,
1993, plaintiffs moved for an extension of time to appeal (No. 93-3184) pursuant to
Fed. R. App. P. 4(a)(5), which permits such motions within sixty days of a final
judgment “upon a showing of excusable neglect or good cause.” The next day, the

(Cont'd)

3a
Appendix A

this suit arose out of the decision by GM in 1979 to sell its
Frigidaire Division and to convert two Dayton, Ohio, Frigidaire
production plants for use by its Chevrolet division.? Almost all
employees at the Frigidaire plants were to be laid off during a
two-year transition period.

The defendants agreed to employ in the Chevrolet plant,
with unbroken seniority, those Frigidaire workers who were
union members. Most of the skilled tradespersons from the
Frigidaire facilities could have found equivalent positions at
Chevrolet, but since Chevrolet had reiegated all modeling
activity to its facility in Warren, Michigan, the Model Makers
were no longer needed in Dayton. The defendants informally
agreed to establish a joint union-management committee to

Cont’

+d A granted the extension in a notation order. Defendants moved for relief
from this order since they were not given an opportunity to contest plaintiffs’
motion. Plaintiffs again moved for an extension of time to appeal (No. 93-3245) on
February 26.

In an order dated March 18, 1993, the district court vacated its notation order
sua sponte, thus mooting defendants’ motion for relief. On May 28, 1993, the court
granted the extension of time to appeal that was sought by plaintiff's motion of
February 26, giving plaintiffs ten days to file notice of appeal; they did soon June 2,
1993 (No. 93-3645). Defendants appealed the court’ s extension on June 18 (No. 93-
3697), arguing that there was neither good cause or excusable neglect.

We find no abuse of discretion, and agree completely with the district court’s
reasoning in its May 28 decision. Since both of plaintiff’ s motions were within sixty
days of the final judgment, we have jurisdiction to hear this appeal.

3. The opinion in Adkins v. International Union of Elec., Radio & Mach.
Workers, 769 F.2d 330 (6th Cir. 1985), gives a more detailed history of this

litigation.

4a
Appendix A

reclassify the Model Makers into another skilled trade
classification, which would make them eligible for jobs in
Dayton.

Union members ratified the plant closing agreement in
February of 1979, and layoffs began shortly thereafter. During
the transition period, the joint committee successfully
reclassified all model makers at the Dayton plants, but these
reassigned workers were not given seniority credit for their time
working at Frigidaire. On June 24, 1981, the plaintiffs sued,
alleging that GM had breached the plant-closing agreement, in
violation of the Labor Management Relations Act, 29 U.S.C.
§ 185, and that the Union had breached its duty of fair
representation by permitting the plaintiffs to be reclassified
without retaining their seniority rights.

The district court bifurcated the liability and damages issues,
and the liability question was tried before a jury. On June 23,
1982, the jury rendered a verdict for the Model Makers, and the
court entered judgment “for the Plaintiffs and against the
defendants as to liability only” on July 26, 1982.

Following the jury verdict, the defendants moved for
judgment notwithstanding the verdict. On September 21, 1983,
the trial court held that the statute of limitations barred the Model
Makers’ claims and granted the defendants’ motion.‘ The
plaintiffs appealed the decision to this court, and the defendants
cross-appealed, arguing that the Model Makers had failed to
produce sufficient evidence of bad faith or arbitrary conduct by
the Union or breach of the plant-closing agreement by GM.

4. Association of Frigidaire Model Makers v. General Motors Corp., 573 F.
Supp. 236 (S.D. Ohio 1983).

5a
Appendix A

In Adkins v. International Union of Elec., Radio & Mach.
Workers, Local 801, 769 F.2d 330 (6th Cir. 1985), another panel
of this court agreed that a six-month statute of limitation applied,
but remanded the case for a determination of when the plaintiffs’
cause of action accrued. The court also rejected the defendants’
cross-appeal:

A hybrid section 301/unfair representation
claim requires the plaintiff to show that the
employer breached the collective bargaining
agreement and that the union acted in such a
discriminatory, dishonest, arbitrary, or
perfunctory fashion as to breach its duty of
fair representation. [DelCostello y.
International Bhd. of Teamsters, 462 U.S.
151, 163-64 (1983)). . . . [P]laintiffs properly
produced evidence that [GM] agreed to
immediately reclassify the plaintiffs and
failed to do so and that the union represented
the model makers in an arbitrary or
perfunctory manner; we reject defendants’
contention that arbitrariness is an
inappropriate standard to apply to union
conduct when negotiating contract
provisions. The evidence of a claim was far
from uncontroverted, but it was sufficient to
sustain a jury verdict. |

Adkins, 769 F.2d at 336-37 (emphasis added).

Upon remand, the district court concluded that the plaintiffs’
claim accrued late enough to make its suit timely, and entered an
order on July 1, 1988, captioned as follows:

6a
Appendix A

DECISION AND ENTRY AFFIRMING
THE VERDICT OF THE JURY;
JUDGMENT ENTERED IN FAVOR OF
THE PLAINTIFFS AND AGAINST THE
DEFENDANTS; ORDER OF REFERENCE
TO UNITED STATES MAGISTRATE TO
ASSESS AMOUNT OF DAMAGES AND
TO AFFIX THE SENIORITY RIGHTS AND
OBLIGATIONS OF THE PARTIES,
PURSUANT TO THE JURY VERDICT.

In the order, the court concluded that “the verdict of the jury must
be affirmed and that judgment must ultimately be entered in favor
of the Plaintiffs and against the Defendants.” (emphasis added).

With the issue of damages still pending before the magistrate
judge, the defendants, on May 28, 1991, renewed their motion for
judgment notwithstanding the verdict, (now designated as a
motion for judgment as a matter of law). They asserted that in Air
Line Pilots Ass’n Int'l v. O’Neill, 499 U.S. 65 (1991), the
Supreme Court had articulated a new definition of arbitrary union
conduct in hybrid § 301 suits, and that the plaintiffs had not
satisfied this standard. On December 31, 1992, the district court
agreed and entered judgment in favor of the defendants. This
appeal followed.

II

The standard for reviewing a district court’s ruling on a
motion for judgment as a matter of law is identical to that
governing a motion for judgment notwithstanding the verdict.
Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 583 (6th Cir.
1994):

Ta

Appendix A

[T]his court reviews a motion for judgment as
a matter of law using the same standard used
by the district court. The court should not
weigh the evidence, evaluate the credibility
of witnesses, or substitute its judgment for
that of the jury; rather, it must view the
evidence in the light most favorable to the
party against whom the motion is made, and
give that party the benefit of all reasonable
inferences.

Ibid. (citations omitted). Accordingly, the motion should be
sustained only “[i]f the evidence ‘points so strongly in favor of
the movant that reasonable minds could not come to a different
conclusion.’ ” Marsh v. Arn, 937 F.2d 1056, 1060 (6th Cir. 1991),
quoting Ratliff v. Wellington Exempted Village Schools Bd. of
Educ., 820 F.2d 792, 795 (6th Cir. 1987).

Il.

The Model Makers argue that the district court’s order
granting judgment as a matter of law violated Rule 50(b)* because
the defendants renewed their prior motion on May 28, 1991,
almost nine years after the district court Originally entered
judgment for the plaintiffs on July 26, 1982. Alternatively, they
argue that the district court’s July 1, 1988 “decision and entry”
constituted a judgment in the plaintiffs’ favor, and that the
defendants’ May 1991 renewed motion was not filed within 10
days of this judgment. They urge this court to find that there was a

5. A motion for judgment as a matter of law, having been made and denied at
the close ofall the evidence, “may be renewed by service and filing not later than 10
days after entry of judgment.” Fed. R. Civ. P. 50(b).

8a
Appendix A

judgment outstanding when the defendants filed their May 1991
motion, because for the court to hold the trial record open for nine
years would be “patently ludicrous, manifestly unjust, and
probably a denial of due process.” Thus, the plaintiffs’ timeliness
challenge hinges upon whether the district court had ever entered
a judgment sufficient to start the running of the ten-day
limitations period of Rule 50(b).

We hold that there has not been such a judgment in this case.
A jury finding of liability is not a final judgment for the purposes
of Federal Rule of Civil Procedure 50(b). The federal rules define
“judgment” to include “a decree and any order from which an
appeal lies.” Fed. R. Civ. P. 54(a). In addition, “[e]very judgment
shall be set forth on a separate document .. . [and] is effective
only when so set forth and when entered as provided in Rule 79(a)
[into the civil docket].” Fed. R. Civ. P. 58.

This court has observed that a district court’s filing of a
memorandum opinion does not constitute a judgment, and that
the time limitations for post-judgment motions do not begin to
run until “a separate document setting forth the judgment in
compliance with Rule 58 [has been] entered.” Jetero Constr. Co.,
Inc. v. South Memphis Lumber Co., 531 F.2d 1348, 1351 (6th Cir.
1976). Further, a court’s jurisdiction continues “[uJntil the entry
of its judgment disposing of the litigation,” and a court retains the
“inherent power to correct any error of its own which it may have
previously made. . . .” /bid. (citations omitted).

A judgment in a bifurcated proceeding is not final until both
liability and damages have been fully resolved. Brown v. United
States Postal Serv., 860 F.2d 884, 886 (9th Cir. 1988) (concluding
that “[{a] district court judgment of liability is not a final judgment
where it remains for the district court to assess damages or

9a
Appendix A

adjudicate other claims for relief”); O. Hommel Co. v. Ferro
Corp., 659 F.2d 340, 353 (3d Cir. 1981) (holding that the term
“judgment” in Rule 50(b) is limited to final judgments), cert.
denied, 455 U.S. 1017 (1982); Warner v. Rossignol, 513 F.2d 678,
684 n.3 (1st Cir. 1975) (rejecting in a bifurcated trial “plaintiff’s
contention that a new trial motion with respect to liability had to
be filed within ten days of entry of the interlocutory judgment...
[because] ‘[t]he judgment’ referred to in [Rule 59(b)] is the final
judgment that will be entered after damages are assessed.”).

Despite the passage of almost nine years from the jury’s
verdict, there simply was no outstanding judgment on record at
the time the defendants filed their renewed motion. The remand
from this court did not order reinstatement of the July 26, 1982,
judgment in the plaintiffs’ favor, but instead required “a
determination of whether the plaintiffs’ J anuary 1981 attempt to
file grievances prevented accrual of their claim until that time.”
Adkins, 769 F.2d at 337. Nor was the district court’s July 1, 1988,
“DECISION AND ENTRY” a final judgment for this purpose:
the document was in the form of a memorandum opinion that
specifically stated that “a judgment must ultimately be entered in
favor of the plaintiffs.” In addition, no separate document
entering judgment pursuant to this memorandum Opinion was
ever filed as required by Fed. R. Civ. P. 58. Accordingly, the
district court was correct in concluding that “as of the time of the
filing of the motion under discussion, there was no valid
judgment in force in this litigation.”

IV

The absence of a final judgment is of consequence only if the
Supreme Court’s decision in Air Line Pilots set forth a new rule.
Thus, the district court could not revisit its prior determination

10a
Appendix A

that the union’s conduct breached its duty of fair representation
without violating the law already established in this case. This
court has observed that the law of the case “applies with equal
vigor to the decisions of a coordinate court in the same case and to
a court’s own decisions.” United States v. Todd, 920 F.2d 399, 403
(6th Cir. 1990).

In Arizona v. California, 460 U.S. 605, 618 (1983), the
Supreme Court noted that “the doctrine posits that when a court
decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.”
Nonetheless, “[l]aw of the case directs a court’s discretion, it does
not limit the tribunal’s power. . . . [I]t is not improper for a court
to depart from a prior holding if convinced that it is clearly
erroneous and would work a manifest injustice.” Jd. at618 & n.8
(citations omitted). Therefore, the “law of the case” doctrine
precludes reconsideration of settled issues unless a “controlling
authority” sets forth a “contrary view of the law.” White v.
Murtha, 377 F.2d 428, 431-32 (Sth Cir. 1968).

The plaintiffs’ position rests entirely on _ their
characterization of the Supreme Court’s intervening decision in
Air Line Pilots Ass’n Int’l v. O'Neill, 499 U.S. 65 (1991), as a
mere clarification of the law, rather than a contrary decision of
law. In Air Line Pilots, the Court considered the case of striking
airline pilots who, by virtue of the back-to-work agreement
negotiated by their union, received less favorable treatment than
if they had unilaterally agreed to return to work. 499 U.S. at 79.
The Court held that the standard for determining whether a union
breaches its duty of fair representation in contract negotiations
was the same as that for other union conduct: “a union breaches
its duty . . . if its actions are either ‘arbitrary, discriminatory, or in
bad faith.’” Jd. at 67. The Court’s definition of “arbitrary”
afforded great deference to the union:

lla
Appendix A

Any substantive examination of a union’s
performance, therefore, must be highly
deferential, recognizing the wide latitude that
negotiators need for the effective
performance of __ their bargaining
responsibilities. . . . [T]he final product of the
bargaining process may constitute evidence
of a breach of duty only if it can be fairly
characterized as so far outside a ‘wide range
of reasonableness,’ that it is wholly
‘irrational’ or ‘arbitrary.’

Id. at 78 (citation omitted).

While the Court characterized its decision in Air Line Pilots
as “clarifying” the duty of fair representation standard, this court
saw it in Ackley v. Local 337, Int’l Brotherhood of Teamsters, 948
F.2d 267 (6th Cir. 1991), as enough of a change in existing circuit
law to warrant vacating a decision it had held for rehearing,
pending the outcome of Air Line Pilots. The Ackley case involved
an employer’s decision to merge the employees and functions of
two separate facilities into a new facility. Different union locals
had represented employees of the two original facilities, but only
one was allowed to represent the combined workforce. The
appointed local negotiated full seniority for its members, but
“endtailed”® the seniority of the other local’s workers, who were
on layoff status when the facilities merged. A jury found that the
local had breached its duty of fair representation to the endtailed
employees.

In this court’s vacated opinion, the majority held that the

6. The term “endtailing” refers to the practice, when two locals merge, of
giving less seniority to some employees.

12a
Appendix A

plaintiffs had presented sufficient evidence of hostility by the
local to sustain the jury verdict. Ackley v. Local 337, Int’l
Brotherhood of Teamsters, 910 F.2d 1295, 1306 (6th Cir. 1990)
(“Ackley I’). Judge Nelson dissented on the grounds that there
was nothing irrational or hostile about the local’s action, and that
the company and the union, faced with a shrinking market, had
made a difficult decision.’ Under such circumstances, he
reasoned that the fact that some employees received full seniority
while others were endtailed was not a breach of the union’s duty
to represent the workers fairly:

This is not a case where the union was
motivated to discriminate against one faction
on racial grounds . . . [or] because that group
had resisted unionization. ... [Nor is it] a
case where a motive to discriminate unfairly
and in bad faith could be inferred from the
fact that the union’s position was
“unsupported by any rational argument
whatsoever.” ... [T]he bargaining position
taken by the union . .. was supported by an
eminently rational argument.

Id. at 1307-08 (Nelson, J., dissenting) (citations omitted).
Following the Supreme Court’s decision in Air Line Pilots,

Judge Nelson’s dissenting opinion was summarily adopted as the
majority opinion:

7. “Because there were not enough jobs to go around . . . some employees
who wanted to work there and who felt they had legitimate claims on jobs at the
facility were inevitably going to lose out. It was up to the union and the company to
decide, through the collective bargaining process, who the individual winners and
losers would be in this zero-sum game.” /d. at 1307 (Nelson, J., dissenting).

13a
Appendix A

The O'Neill case has now been decided. It
teaches us that what a union does in its
negotiating capacity is not actionable absent
proof of bad faith, discrimination, or behavior
so unreasonable as to be irrational... .
Having reexamined the record of the instant
case in light of O’Neill, we are satisfied,
essentially for the reasons stated by Judge
Nelson in the dissenting opinion . . . that there
is no basis on which the jury could properly
have found the union’s conduct to have been
arbitrary, discriminatory, or irrational.

Ackley v. Local 337, Int’! Brotherhood of Teamsters, 948 F.2d 267
(6th Cir. 1991) (citation omitted).

This court agrees that Air Line Pilots enunciated a “contrary
view of the law” applicable to this case. Otherwise, there would
have been no need for the Ackley J court to reverse itself. Given
that the district court is not only constrained by the law of the
case, but is also obligated to follow controlling authority,
adopting the plaintiffs’ position would require the district court to
ignore a decision of the Supreme Court, which clearly “would
work a manifest injustice.” Arizona v. California, 460 U.S. at 618
n.8 Admittedly, a district court will only rarely be forced to vacate
a jury’s verdict, but that makes it no less appropriate in particular
circumstances. The parties’ own actions in prolonging the
damages portion of the litigation only increased the possibility of
an intervening change in the law. Based on the foregoing, the
plaintiffs’ contention that the district court’s decision violated the
law of the case is without merit.

l4a

Appendix A

Vv

The Model Makers argue that the passage of more than a
decade since their complaint was filed violates their trial rights
under the Seventh Amendment and Federal Rule of Civil
Precedure 1, and that the protracted nature of the proceedings has
denied them due process. The defendants counter that the
plaintiffs should not prevail simply because of the length of the
proceedings. Moreover, the defendants maintain that most of the
delays in this case are directly attributable to the plaintiffs, and
that the plaintiffs have identified no instance in which the
defendants engaged in dilatory tactics.

The Seventh Amendment does not address the speed with
which civil litigation must proceed. It would be unprecedented to
read it as authorizing a judgment in the plaintiffs’ favor merely
because it took the court system thirteen years to dispose of their
claim finally; the defendants have been equally hindered. This
unusually long delay was due in part to the parties’ own
decisions, so that any injustice or outrage is self-inflicted; the
primary culprit is the parties’ inability to conclude the damages
segment of the trial for almost thirteen years. Both sides
contributed to, as well as benefitted from, the delay: six years of
the litigation was spent adjudicating a threshold issue of the
statute of limitations, a ruling that enabled the plaintiffs to
proceed to trial. In short, both sides have nobody to blame but
themselves.

For the foregoing reasons, we put this litigation to final rest
and AFFIRM the district court’s judgment for the defendants.

15a

APPENDIX B — DECISION AND ENTRY SUSTAINING
DEFENDANTS’ RENEWED MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF OHIO FILED DECEMBER 31, 1992

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. C-3-81-343
ASSOCIATION OF FRIGIDAIRE MODEL MAKERS, etal.

Plaintiff
vs.

GENERAL MOTORS CORPORATION, et al.

Defendant

DECISION AND ENTRY SUSTAINING DEFENDANTS’
RENEWED MOTION FOR JUDGMENT NOTWITHSTANDING
THE VERDICT (DOC. 196); MAGISTRATE’S REPORT AND
RECOMMENDATIONS (DOC. 202) ADOPTED IN THEIR
ENTIRETY; CERTAIN MATTERS DEEMED MOOT:
JUDGMENT TO DEFENDANTS AND AGAINST PLAINTIFFS;
TERMINATION ENTRY

The renewed motion of the Defendants, seeking an order of
the Court granting judgment notwithstanding the verdict
(construed as a renewed motion for judgment as a matter of law,
pursuant to Fed. R. Civ. P. 50 (b)), based upon the intervening
decision of the United States Supreme Court in Airline Pilots

16a
Appendix B

Association International v. O'Neill, et al., 499 U.S. __, 113 L.
Ed. 2d 51, 111 S.Ct. 1127 (1991) (Doc. #196), is sustained.
Judgment will be entered in favor of the moving Defendants and
against the Plaintiffs herein, thus terminating this litigation.

This Court has done a thorough review of the memoranda
submitted both in support of and in opposition to the Defendants’
Renewed Motion for Judgment Notwithstanding the Verdict
(Doc. #196, 198 and 199), the Report and Recommendation of
the United State Magistrate Judge (Doc. #202), which
recommended to this Court the granting of said Renewed Motion
or Judgment Notwithstanding the Verdict, and the memoranda
filed both in support of and in opposition to the Magistrate
Judge’s Report and Recommendations (Docs. 203, 206, 208 and
213). This Court has conducted a thorough de novo review of the
entirety of the file in Clerk of Court’s office and of the transcript
of the trial which led to a finding of liability in favor of the
Plaintiffs and against the Defendants herein. While it seems
totally anti-climactic to end a case with this lengthy a procedural
history (a multi-week trial on the issue of liability, a month long
hearing on the issue of the remedy and at least one trip to the
Court of Appeals) on this note, this Court is satisfied, to an
absolute degree of certainty, that the Supreme Court’s decision in
Airline Pilots Association v. O’ Neill, a decision which intervened
between the finding of liability and the filing of the instant
motion, is both applicable and dispositive of this litigation.
Moreover, this Court is satisfied that the Supreme Court’s
pronouncement in O’Neill did more than merely explain or refine
a standard of long duration; the holding in O’Neill set forth, in
this Court’s opinion, a new standard applicable to claims of
breach of the duty of fair representation, a standard which the
Plaintiffs in this litigation have failed to meet.

17a
Appendix B

Certainly the denouement of litigation this important and
this protracted, litigation that has already seen in the
neighborhood of 220 docket entries, ought to end with nothing
less than a ringing exposition on the applicable law. However,
this Court has always believed in the wisdom of not “reinventing
the wheel, unless absolutely necessary.” In this Court’s opinion,
while it could not better the rationale set forth by the United
States Magistrate Judge, in his filing of December 30, 1991 (Doc.
#202), which recommended the granting of the Defendant’s
Renewed Motion for Judgment Notwithstanding the Verdict, the
Court will, in addition to the reasoning and citations of authority
set forth in the Report and Recummendations of the Magistrate
Judge, add the following non-exclusive observations.

A. The Motion is Timely.

Rule 50(b), providing for post-trial renewed motions for
judgment as a matter of law (the successor to the post trial verdict
motion for judgment notwithstanding the verdict) clearly sets
forth that such a motion must be filed “not later than 10 day after
entry of judgment.”' It is crystal clear that, as of the time of the
filing of the motion under discussion, there was no valid
judgment in force in this litigation. Judgment, within the meaning
of the rule, means final judgment. O. Hommel Co. v. Ferro Corp.,
659 F.2d 340 (3rd Cir. 1981), cert. den., 455 U.S. 1017, 102 S.Ct.
1711 (1982). Assuming, arguendo, that this Court had attempted
to journalize, as a judgment entry, the jury’s verdict in favor of the
Plaintiffs on the issue of liability, same would have been an
invalid or non-final judgment, absent a Rule 54 certification,

1. The motion at issue was filed on May 28, 1991, prior to the effective date of
Rule 50(b) on December 1, 1991, a time when the term “judgment notwithstanding
the verdict” was proper. However, the time for filing of said motion was identical to
that applicable to post trial verdict motions for judgment as a matter of law.

18a

Appendix B

since it would have purported to grant judgment on the issue of
liability only, without adjudication of damages. The only
judgment ever entered in this case, prior to the filing of the
motion at issue herein, was the judgment granted by this Court
upon the Defendant’s motion for judgment notwithstanding the
verdict, on September 21, 1983 (Docs. #74 and 75). That
judgment was vacated by the Court of appeals, which remanded
the matter to this Court, for a specific factual finding and inquiry,
upon which the Court’s conclusion that the statute of limitations
barred the Plaintiffs’ claims had been based. On July 1, 1988, this
Court reinstated the verdict of the jury, concluding “that
judgment must ultimately [meaning after the determination of
damages and any other aspects of the remedy] be entered in favor
of the Plaintiffs and against the Defendants.” A referral to the
Magistrate Judge for proceedings related to damages, et cetera,
was made at that time. No judgment has been entered subsequent
to this Court’s reinstatement of the jury verdict.

B. O’Neill is “Controlling Authority” taking a “Contrary View
of the Law.”

The Supreme Court granted certiorari in O’Neill to clarify
that the standard of Vaca v. Sipe, 386 U.S. 171, 87 S.Ct. 903
(1967) — that a union breaches its duty of fair representations if
its actions are either “arbitrary, discriminatory or in bad faith”? —
applies to all union activity, including contract negotiation. All
union activity includes both the negotiation of a contract and its
implementation or execution. This clarification was unnecessary,
insofar as the Sixth Circuit or this Court was concerned. Both
courts had assumed the blanket application of Vaca v. Sipes to all
aspects of contract formation and execution in prior rulings in
this case.

2. Vaca speaks to actions “either arbitrary, discriminatory or in bad faith.”
However, only the “arbitrary” component is at issue herein.

19a
Appendix B

One aspect of O’Neill represents a change in the law,
profound enough to be both new and contrary authority to the
progeny of Vaca. Prior to O’ Neill, the union was under a duty to
avoid “arbitrary” conduct, Ruzicka v. General Motors Corp., 523
F.2d 306, at 309-10 (6th Cir. 1985). The focus was on the actions
of the union without the requirement that those actions be
considered in the context of other facts and circumstances
existing at the time. Of course, the alleged arbitrary conduct had
to result in some proximately caused damage to a union member
plaintiff, but the gravamen of aclaim of a breach of a duty of fair
representation was on the conduct of the union officials, not on
the result. In O’Neill, the Court stated:

We further hold that a union’s actions are
arbitrary only if, in light of the factual and
legal landscape at the time of the union’s
actions, the union’s behavior is so far outside
“a wide range of reasonableness,” . . . as to be
irrational. O'Neill, 111 S.Ct. at 1130
(citations omitted).

For that reason [to preserve the relationship
between the court and labor unions a highly
deferential, recognizing the wide latitude that
negotiations need for the effective
performance of their responsibilities], the
final product of the bargaining process may
constitute evidence of a breach of duty only if
it can be fairly characterized as “so far outside
a wide range of reasonableness” . . . that it is
wholly “irrational” or “arbitrary.” Id., at
1135-36 (citations omitted).

20a

Appendix B

O’Neill thus introduced into the equation, in addition to the
conduct of the allegedly offending union official, two factors:
The end product and the context in which the allegedly offensive
actions or failure to act took place. The end product must be so
calamitous as to raise the inference that the conduct bringing
about that end product was unreasonable, outside of a wide range
of reasonable conduct, in short, irrational. The actions and the
end product cannot be deemed arbitrary and irrational, as beyond
the pale of reasonableness, without considering both actions and
end product within the context of “the factual and legal landscape
at the time of the union’s actions.”

This Court is satisfied, as it believes was the Sixth Circuit in
Ackley v. Teamsters Local 337, 948 F.2d 267 (6th Cir. 1991),’ that
conduct that would have been proscribed as arbitrary prior to
O’Neill, would pass muster within the meaning of the O’Neill
redefinition of arbitrary, as behavior so unreasonable as to be
irrational, and its mandate that courts consider the
reasonableness of the conduct in question in light of the end
result, measured by the factual and legal milieu existing at the
time. 7

C. The Merits of the Motion.

In light of O’Neill, and the record in this case, keeping the
standard of Rule 50 in mind, this Court concludes that “there is no
sufficient evidentiary basis for a reasonable jury to have found
{for the Plaintiffs on their claim that the union Defendants
breached their duty of fair representation by conduct so
unreasonable as to be wholly irrational].”

3. The Sixth Circuit, on reconsideration in light of O'Neill, reversed a split
decision, 910 F.2d 1295, which had held the union’ s conduct to be in violation of its
duty of fair representation.

21a
Appendix B

D. Certain Matters Rendered Moot.

As a result of this decision terminating this case, the
following matters are rendered moot:

(1) Objections by all parties (Docs. #177, 180 and 183) to
Report and Recommendations of Magistrate Judge (Doc. #171);

(2) Objections by all parties (Doc. #192, 193 and 194) to
Supplemental Report and Recommendations of Magistrate J udge
(Doc. #190); and

(3) Plaintiff’s Request for Attorneys Fees (Doc. #176).

Accordingly said Report and Recommendations are adopted
in their entirety. The Defendants’ Renewed Motion for Judgment
Notwithstanding the Verdict, construed as a renewed motion for
judgment as a matter of law (Doc. #196), is sustained. The
Plaintiffs, having failed to sustain their burden of proof with
regard to their claims against the Union Defendants, cannot, as a
matter or law, prevail against the Employer. Final judgment will
be entered in favor of the Defendants and against the Plaintiffs
herein.

The captioned cause is ordered terminated upon the docket
records of the United States District Court or the Southern
District of Ohio, Western Division, at Dayton.

s/ Walter Herbert Rice
WALTER HERBERT RICE
UNITED STATES DISTRICT JUDGE

Copies mailed to:

David Hall, Esq.
Joseph P. Buchanan, Esq.
Richard F. Rice, Esq.

22a

APPENDIX C — REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
FILED DECEMBER 30, 1991

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

Civil Action No. C-81-343

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

ASSOCIATION OF FRIGIDAIRE MODEL MAKERS, et al.,
Plaintiffs,

-VS-

GENERAL MOTORS CORPORATION, et al.,
Defendants.

REPORT AND RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE: DEFENDANTS’ MOTION FOR
JUDGMENT NOTWITHSTANDING THE VERDICT
SHOULD BE GRANTED

This case is before the Court upon Defendants’ Renewed
Motion for Judgment Notwithstanding the Verdict (Doc. #196)
which has been referred to the United States Magistrate Judge for
report and recommendation pursuant to 28 U.S.C. § 636(b)(3)
(Doc. #200).

Defendants have renewed their motion for judgment because
they believe the law applicable to this case has been changed by

23a

Appendix C

the decision of the United States Supreme Court in Air Lines
Pilots Ass’n. Intern. v. O’Neill.499 U.S. insist SEB. Ce. 4927..113
L. Ed. 2d 51 (1991). They ask this Court to apply the Air Line
Pilots Ass'n. decision in reevaluating their motion for directed
verdict as re-presented to the Court in their prior motion for
judgment notwithstanding the verdict.

Effective December 1,1991, Fed. R Civ. P. 50 was amended
to eliminate the terminology of “directed verdicts” and
“judgment notwithstanding the verdict.” The new terminology is
“judgment as a matter of law.” By Order of the Supreme Court
adopting the rules amendments, they govern “all proceedings in
civil actions then pending, insofar as just and practicable.”
According to the Notes of the Advisory Committee on Rules, new
Rule 50(b) “retains the concept of the former rule that the post-
verdict motion is a renewal of an earlier motion made at the close
of the evidence.” Furthermore, the Committee indicates that,
even after December 1, 1991, denominating the motion as one for
judgment nov is merely a formal error and “Such motion shall be
treated as a motion for judgment as a matter of law in accordance
with this rule.” I conclude that the amendment is, as to the motion
presently before the Court, merely one of terminology not
affecting the decision of the motion either procedurally or
substantively. However, the new terminology will be used below,
consistent with the amendment’s present effectiveness.

TIMELINESS OF THE MOTION

Plaintiffs contend (Reply of Plaintiffs to Defendants
Renewed Motion, Doc. #198) the motion is untimely because
under Fed. R. Civ. P. 50(b), a motion for judgment nov must be
made within ten days of the entry of judgment and judgment in
this action was entered in September, 1983. The judgment to

24a
Appendix C

which Plaintiffs refer (Doc. #74) granted Defendants motion for
judgment nov on statute of limitations grounds. That Judgment
was appealed by Plaintiffs and reversed by the Sixth Circuit in
Adkins v. Intern. Union of Elec., Radio & Machine Workers, 769
F. 2d 330 (1985). That prior judgment, having been vacated, is of
no further force and effect. Surely Rule 50(b) does not mean that
once a party has moved for judgment nov in a case with respect to
a particular judgment, it cannot again make such a motion as to a
later judgment in the case, yet this is the reading for which
Plaintiffs contend. Nothing in the text of Rule 50(b) suggests
such a reading and it should be rejected by the Court.

Since no fii%2] judgment has yet been entered in this case,
there appears to be some dispute between the parties as to
whether the motion is premature. Defendants rely on Collins v.
State of Illinois, 830 F. 2d 692 (7th Cir. 1987), in which a motion
for judgment nov filed after verdict but before judgment was held
timely, even though it was more than ten days after the verdict.
Plaintiffs attempt to distinguish Collins (Doc. #198, p. 3, n.1).
The Collins case is, however, completely inapposite. The issue in
that case was those defendants’ reliance on the old version of
Rule 50(b) which required the motion for judgment nov to be
made within ten days of the verdict. The time portion of the rule
was amended in 1963 to its present form to make it consistent
with the time limits for a motion for new trial. Advisory
Committee Note, 31 F.R.D. at 645. The text of the rule as now
written requires the motion to be filed not later than ten days after
judgment. Defendants’ motion is timely since no judgment, other
than one which has been vacated, has been entered in the case.

LAW OF THE CASE DOCTRINE

The propriety of this Court’s denial of Defendants’ motions

25a
Appendix C

for directed verdict was previously appealed to the Sixth Circuit
which affirmed the denial of a directed verdict. Adkins, 769 F. 2d
at 336-37. The complete opinion of the Court of Appeals on this
assigned error is as follows: .

General Motors has cross-appealed in the
Adkins and Model Makers cases, arguing that
in neither case have plaintiffs shown a cause
of action. A hybrid section 301/unfair
representation claim requires the plaintiff to
Show that the employer breached the
collective bargaining agreement and that the
union acted in such a discriminatory,
dishonest, arbitrary or perfunctory fashion as
to breach its duty of fair representation.
DelCostello [v. International Brotherhood of
Teamsters}, 462 U.S. [151] at 163-164,103 S.
Ct. at 2289-90. . . . In the Model Makers case,
plaintiffs properly produced evidence that
General Motors agreed to immediately
reclassify the plaintiffs and failed to do so and
that the union represented the model makers
in an arbitrary or perfunctory manner, we
reject defendants’ contention that
arbitrariness is an inappropriate standard to
apply to union conduct when negotiating
contract provisions. The evidence of a claim
was far from controveried, but it was
sufficient to sustain a jury verdict.

Id.

Ordinarily when a court of appeals decides a question, that

26a
Appendix C

decision becomes the law of the case upon remand and further
appeal and precludes reconsideration of identical issues. Petition
of United States Steel Corporation, 479 F. 2d 489, 493-94 (6th
Cir. 1973), Ex parte Sibbald v. United States, 12 Pet. (37 U.S.)
489, 9 L. Ed. 1167 (1838). However, the law of the case doctrine
is not applicable if “a controlling authority” subsequently takes a
“contrary view of the law.” Petition of United States Steel
Corporation, 479 F. 2d at 494, citing White v. Murtha, 377 F. 2d
428, 431-32 (Sth Cir. 1968).

The United States Supreme Court being “a controlling
authority” with respect to the Sixth Circuit, the question is
whether the Supreme Court’s opinion in Air Lines Pilots Ass’n.
represents a contrary view of the law to that enunciated in Adkins.
In Air Line Pilots Ass’n., Justice Stevens wrote for a unanimous
Court:

We further hold that a union’s actions are
arbitrary only if, in light of the factual and
legal landscape at the time of the union’s
actions, the union’s behavior is so far outside
a “wide range of reasonableness,” Ford
Motor Co. v. Huffman, 345 U.S. 330, 338, 73
S. Ct. 681, 686, 97 L. Ed. 1048 (1953), as to
be irrational.

111 S. Ct. at 1130.

In Air Line Pilots Ass’n., the district court granted a motion
for summary judgment in favor of the union on the pilots’ claim,
among others, that “ALPA negotiated an agreement which
arbitrarily discriminated against striking pilots.” Because the
standards for granting summary judgment and a directed verdict

27a

Appendix C

are the same,’ in effect the district court held that the pilots had
not produced sufficient evidence for a jury to decide by a
preponderance of the evidence that the union had acted
arbitrarily.

The Fifth Circuit reversed. 886 F. 2d 1438 (1989).
Interpreting the arbitrariness component of unfair representation
claims laid down in Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903,17
L. Ed. 2d 842 (1967), the Fifth Circuit stated:

We think a decision to be non-arbitrary must
be (1) based upon relevant, permissible union
factors which excludes the possibility of its
being based upon motivations such as
personal animosity or political favoritism; (2)
a rational result of the consideration of these

factors; and (3) inclusive of a fair and

impartial consideration of the interests of all
employees.

886 F. 2d, at 1444, quoting Tedford v. Peabody Coal Co., 533 F. 2d
952, 957 (Sth Cir. 1976) (emphasis added by the Court of
Appeals). Thus the Fifth Circuit was specifically concentrating
on the necessary rationality component of non-arbitrary union
decisions.

On appeal to the Supreme Court, the ALPA union attempted
in vain to have that Court repudiate the arbitrariness element
altogether, which the Court refused to do. The Court did, :
however, reject the Fifth Circuit’s further refinement of the

arbitrariness standard as quoted above

1. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986).

28a

Appendix C

We are persuaded, however, that the Court of
Appeals’ further refinement of the
arbitrariness component of the [Vaca v. Sipes]
standard authorizes more judicial review of
the substance of negotiated agreements than
is consistent with national labor policy.

As we acknowledged above, Congress did not
intend judicial review of a _union’s
performance to permit the court to substitute
its own review of the proper bargain for that
reached by the union. Rather, Congress
envisioned the relationship between the
courts and labor unions as similar to that
between the courts and the legislature. Any
substantive examination of a _ union’s
performance, thererore, must be highly
deferential, recognizing the wide latitude that
negotiators need for the effective
performance of their bargaining
responsibilities. Cf. Day-Brite Lighting. Inc..
v. Missouri, 342 U.S. 421, 423, 72S. Ct. 405,
407, 96 L. Ed. 469 (1952) (court does “not sit
as a superlegislature to weigh the wisdom of
legislation nor to decide whether the policy
which it expresses offends the public
welfare”); United States vv. Carolene
Products, 304 U.S., at 154, 58 S. Ct., at 784
(where “question is at least debatable,”
“decision was for Congress”). For that
reason, the final product of the bargaining
process may constitute evidence of a breach
of duty only if it can be fairly characterized as

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29a
Appendix C

so far outside a “wide range of
reasonableness,” Ford Motor Co. v. Huffman,
345 U.S., at 338, 73 S. Ct., at 686, that it is
wholly “irrational” or “arbitrary.”

Air Line Pilots Ass’n., 111 S. Ct., at 1135-36.

The Supreme Court does not cite appellate cases from
circuits other than the Fifth with which its decision in Air Line
Pilots Ass’n. may be in conflict. Neither party has cited this Court
to Sixth Circuit precedent defining the arbitrariness component
of the Vaca v. Sipes standard. It appears that the controlling case is
Ruzicka v. General Motors Co., 523 F. 2d 306 (6th Cir. 1975), in
which the court adopted a standard enunciated by the Fourth
Circuit:

A union must conform its behavior to each of
these three separate standards. First, it must
treat all factions and segments of its
membership without hostility or
discrimination. Next, the broad discretion of
the union in asserting the rights of its
individual members must be exercised in
complete good faith and honesty. Finally, the
union must avoid arbitrary conduct.

523 F. 2d, at 309-10, quoting Griffin v. International Union of
United Automobile Workers, 469 F. 2d 181, 183 (4th Cir. 1974).
In Ackley v. Local Union 337, 910 F. 2d 1295 (6th Cir. 1990), the
court upheld a jury verdict for plaintiffs in a meshing of seniority
situation upon a finding of some hostility by union leadership
over the dissent of Judge Nelson who would have upheld the
union decision. However, the Sixth Circuit apparently regards its

30a
Appendix C

prior interpretation of Vaca as impacted by Air Line Pilots Ass’n.,
because upon reconsideration of its first Ackley decision in light
of the Supreme Court’s decision, it reversed and ordered the entry
of judgment notwithstanding the verdict on the basis of Judge
Nelson’s dissent. Ackley v. Local Union 337, ___ F.2d___. 1991
U.S. App. LEXIS 25780 (10/31/91). I conclude that Air Line
Pilots Ass'n. represents a view of the law contrary to the view
taken by the Sixth Circuit on the prior appeal in this case.
Therefore, the doctrine of law of the case does not bar
reconsideration of whether there was sufficient evidence to
permit the jury to find the Union had acted arbitrarily.

THE MERITS OF THE MOTION

When the standard of Air Line Pilots Ass'n. is applied to the
evidence in this case, I conclude the motion for judgment as a
matter of law should be granted.

As Air Line Pilots Ass’n. directs, we must view the union’s
decision “in light of the factual and legal landscape at the time of
the union’s actions.” 111 S. Ct., at 1130. The facts as I find them
are set forth in the original Report and Recommendations (Doc.
#171) and are summarized as relevant here.

In January, 1979, all Plaintiffs were employed at the
Frigidaire Division of General Motors as model makers, a
function in the product engineering department of Frigidaire
which was responsible for design of new appliance products. All
Plaintiffs were also members of Defendant Local 801, which
represented all of the unionized GM employees at Frigidaire.

In January, 1979, GM decided to sell the Frigidaire business
to White Consolidated Industries and convert the two Frigidaire

are

3la
Appendix C

plants in Moraine, Ohio, to functions for its Chevrolet Division,
specifically truck assembly and building of engines. The
Chevrolet Division already had a product engineering
department in Michigan and did not plan to replicate that function
in Dayton. Plaintiffs were informed of that decision before the
Frigidaire plants ceased production.

Local 801 negotiated on behalf of all its members to obtain
for them employment in the new Chevrolet plants with retained
Frigidaire seniority and potential for employment at other
Dayton-area GM plants. It was successful: GM agreed that 801
members would have recall rights to other Dayton plants and to
the remodeled Chevrolet plants. Furthermore, the twenty-eight
Frigidaire skilled trades classifications would be melded with the
fourteen Chevrolet skilled trades classifications? and skilled
tradespeople would retain, in addition to plant seniority, their
skilled trades seniority.

Since there would not be any model making function in the
Chevrolet plants, these arrangements were not applied to the
model makers. Instead, GM and Local 801 agreed the individual
model makers’ skills would be examined to determine if they
could be reclassified to one of the Chevrolet skilled trades. (L.e.,
other Frigidaire skilled trades were reclassified on a group basis;
model makers were reclassified on a one-by-one basis.) They
would then be eligible for recall to the Chevrolet plants after the
persons already in those skilled trades and would get anew date-
of-entry skilled trades seniority date when they were recalled.

All model makers were laid off from Frigidaire on February
23, 1979, and they were not reclassified until the model maker

2. The only classification both Divisions had in common was “tinsmith”
(Doc. #171, p. 24).

32a

Appendix C

reclassification agreement was signed in May, 1980. The jury
found that the model makers should have been immediately
reclassified to the Chevrolet skilled trades classifications and
should have retained their original Frigidaire skilled trades
seniority dates, which would have enabled them to be recalled
ahead of some of the Frigidaire skilled tradespeople in other
skills who were reclassified as a group.’ Local 801 was found
liable for unfair representation for permitting these results. In
essence, the jury gave the model makers the deal they believed
the union should have negotiated for them instead of the deal the
union actually negotiated.‘

This Court, including the trial jury, cannot be said to have
deferred to the union’s decision in this case in the same manner as
courts are required to defer to legislatures, but that is what Air
Line Pilots Ass’n. commands. The distinction made by Local 801
between the model makers and the other skilled trades was
certainly not “wholly irrational.” All of the other skilled
tradespeople were going to be continuing to perform at Chevrolet
the same job functions as they performed at Frigidaire, albeit
under a different classification name. The model making
function, on the other hand, was completely abolished. The
model makers were entering new job functions, albeit functions
for which they were individually prepared by past employment,
often with other employers.

3. Plaintiffs contend the jury found other breaches of contract by General
Motors; for the reasons set forth at length in the original Report and
Recommendations, I have concluded only these two breaches of contract were
submitted to the jury. (Doc. #171, pp 7-23).

4. Since a § 301 plaintiff is entitled to trial by jury, the judicial review of
union-negotiated agreements referred to by the Supreme Court in Air Line Pilots
Ass’n.is actually review by a jury, subject to the usual rules for court governance of
jury decision making.

33a
Appendix C

Fairness arguments can obviously be made both ways. It
would not have been unfair to the other skilled trades to treat all
Frigidaire skilled tradespeople as a class and integrate them into
the Chevrolet plants in accordance with their original skilled
trades dates at Frigidaire, the result the Plaintiffs wanted and
obtained from the jury. But it also would not have been unfair to
regard the model makers as starting over at new skilled trades, the
result GM and Local 801 negotiated. Since the agreement
negotiated by the union is not “wholly irrational,” it cannot be
held arbitrary and thereby in isolation of § 301. In the words of
Carolene Products, quoted in Air Line Pilots Ass ‘n., the seniority
question is “debatable” and the court should therefore defer to the
union, as it would to a legislature in parallel circumstances.

Reaching this result does not require an inappropriate
substitution of the Court’s judgment for that of the jury. In Air
Line Pilots Ass’n., the Supreme Court itself weighed the
rationality of the various outcomes and itself determined that the
result achieved by the union there was not wholly irrational; it
unanimously found that the district court’s summary judgment
for the union should not have been disturbed. Likewise in Ackley
v. Local Union 337, the Sixth Circuit, applying Air Line Pilots
Ass’n., remanded with instructions to enter judgment
notwithstanding the verdict for the defendant union.

The result achieved in this case by Local 801 for the model
makers certainly is better for the Plaintiffs than the result
achieved for the unsuccessful plaintiffs in Air Line Pilots Ass’n.:
the Supreme Court there assumed the plaintiffs would have been
better off if their union had completely capitulated to the
employer in a strike situation and just gone back to work. If a
negotiated result worse than complete surrender can be found
sufficiently rational to permit a unanimous Supreme Court to

34a
Appendix C

uphold summary judgment for the union, surely the much betier
results achieved by Local 801 for the model makers here is
sufficiently rational to compel the same result.*

CONCLUSION

On the basis of Air Line Pilots Ass’n. v. O'Neill, supra, the
Court should GRANT Defendants’ Renewed Motion for
Judgment Notwithstanding the Verdict and enter judgment as a
matter of law in favor of the Defendants and against the Plaintiffs,
discussing this action with prejudice.

December 28, 1991.
s/ Michael R. Merz

Michael R. Merz
UNITED STATES MAGISTRATE JUDGE

5. As Defendants point out in their Memorandum (Doc. #196), the pattern
makers, the other skilled tradespeople in the Frigidaire Product Engineering
Department, were unrepresented by the union and just disappeared from the new
Chevrolet plants. The Court should also not ignore the other benefits which the
union negotiated for the model makers or knew they would have: recall rights as
model makers to other GM Divisions in the Dayton area and supplemental
unemployment benefits which, with state unemployment compensation, would
give them 95% of their employed pay for a substantial period of time. The existence
of SUB pay resulted in a very substantial decrease in back pay damages in this case,
even applying the jury verdict.

35a

APPENDIX D — DECISION AND ENTRY OVERRULING

RENEWED MOTION FOR NEW TRIAL AND MOTION

FOR JUDGMENT NOTWITHSTANDING THE VERDICT

AND/OR FOR NEW TRIAL OF UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
OHIO FILED JUNE 5, 1989

IN THE UNITED STATES DISTRICT COURT
FOR TE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. C-3-81-343
ASSOCIATION OF FRIGIDAIRE MODEL MAKERS, et ai.,
Plaintiffs,
GENERAL MOTORS CORPORATION, et al.,
Defendants.

DECISION AND ENTRY OVERRULING RENEWED
MOTION OF DEFENDANT GENERAL MOTORS
CORPORATION FOR NEW TRIAL (DOC. #98) AND
MOTION OF DEFENDANT UNIONS FOR JUDGMENT
NOTWITHSTANDING THE VERDICT AND/OR FOR NEW
TRIAL (DOC. #101)

Based upon a consideration of all pleadings and memoranda
filed in the captioned cause, including, inter alia, memoranda
filed both in support of and in opposition to the Renewed Motion
of Defendant General Motors Corporation for New Trial (Doc.
#98) and Motion of Defendant Unions for J udgment
Notwithstanding the Verdict and/or for New Trial (Doc. #101 ),a
well as upon the arguments of counsel adduced at an oral hearing
upon said motions, it is the opinion of this Court that the aforesaid

36a
Appendix D
motions are not well taken and same are, therefore, overruled,
each in their entirety.
s/ Walter H. Rice

WALTER H. RICE
UNITED STATES DISTRICT JUDGE

Copies mailed to:

David L. Hall

Attorney at Law

310 Regency Ridge Drive
Dayton, OH 45459
(Counsel for Plaintiffs) -

Joseph P. Buchanan

Attorney at Law

2580 Kettering Tower

Dayton, OH 45432

(Counsel for Defendant General-Motors Corporation)

J.R. Wheatley

Attorney at Law

555 South Woodward Avenue

Suite 400

Birmingham, MI 48011

(Counsel for Defendant General Motors Corporation)

Richard F. Rice

Attorney at Law

3461 Office Park Drive

Kettering, OH 45439

(Counsel for Defendant International Union)

Honorable Michael R. Merz, United States Magistrate

AER ne mt

37a

APPENDIX E — ADDENDUM TO THE DECISION AND

ENTRY AFFIRMING THE VERDICT OF THE JURY

(FILED JULY 1, 1988) OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT
OF OHIO FILED JULY 15, 1988

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. C-3-81-343
ASSOCIATION OF FRIGIDAIRE MODEL MAKERS , et al.,
Plaintiffs,
vs.
GENERAL MOTORS CORPORATION, et al.,
Defendants.

ADDENDUM TO THE DECISION AND ENTRY AFFIRMING
THE VERDICT OF THE JURY FILED JULY 1, 1988

The Court finds support for its interpretation of what
constitutes a “valid, timely, nonfrivolous attempt” in the recent
case of Andrews v. Orr, slip op. (6th Cir. June 30, 1988) (1988 WL
66332). In Andrews, the plaintiffs were reasonably ignorant of
the fact that a particular motion for class cettification upon which
they had been relying had been extinguished, and therefore were
unaware that the statute of limitations had begun to run on their
claim. Andrews v. Orr, slip op. at 10-14. The Sixth Circuit
concluded that under the doctrine of equitable tolling the
plaintiffs should not be penalized for their reasonable ignorance.

38a
Appendix E

Id. In the case at bar, Plaintiffs were reasonably ignorant of the
fact that their attempt to grieve was useless and therefore were
unaware that the statute of limitations had begun to run on their
claim. The Court concludes that it would be grossly unfair to
penalize Plaintiffs for their reasonable ignorance.

s/ Walter H. Rice
WALTER H. RICE
UNITED STATES DISTRICT JUDGE

Copies mailed to:

David L. Hall

Attorney at Law

310 Regency Ridge
Dayton, OH 45459
(Counsel for Plaintiffs)

Joseph P. Buchanan

Attorney at Law

2580 Kettering Tower

Dayton, OH 45423

(Counsel for Defendant General Motors)

Richard F. Rice

Attorney at Law

3461 Office Park Drive

Kettering, OH 45439

(Counsel for Defendant International Union)

Honorable Michael R. Merz, United States Magistrate

39a

APPENDIX F — DECISION AND ENTRY AFFIRMING
THE VERDICT OF THE JURY (WITH) ORDER OF
REFERENCE TO UNITED STATES MAGISTRATE OF
THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF OHIO FILED JULY 1, 1988

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. C-3-81-343
ASSOCIATION OF FRIGIDAIRE MODEL MAKERS. et al.,
Plaintiffs,
vs.
GENERAL MOTORS CORPORATION, et al.,
Defendants.

DECISION AND ENTRY AFFIRMING THE VERDICT OF
THE JURY; JUDGMENT ENTERED IN FAVOR OF THE
PLAINTIFFS AND AGAINST THE DEFENDANTS; ORDER
OF REFERENCE TO UNITED STATES MAGISTRATE TO
ASSESS AMOUNT OF DAMAGES AND TO AFFIX THE
SENIORITY RIGHTS AND OBLIGATIONS TO THE
PARTIES, PURSUANT TO THE JURY VERDICT

This case is before the Court on the Order of Remand of the
United States Court of Appeals for the Sixth Circuit (Doc. #87).
For the reasons set forth below, the Court concludes that the
verdict of the jury must be affirmed and that judgment must
ultimately be entered in favor of the Plaintiffs and against the
Defendants.

40a
Appendix F

This action was brought on June 24, 1981, pursuant to
Section 301 of the Labor Management Relations Act of 1947, 29
U.S.C. § 185. Plaintiffs alleged that the Defendants breached
labor contracts and their duty of fair representation by, inter alia,
failing to classify Plaintiffs into new job categories and by failing
to preserve their seniority. On June 23, 1982, following a civil
trial, a jury found for Plaintiffs on the issue of liability.
Subsequently, the Defendants filed Motions for Judgment
Notwithstanding the Verdict on the grounds that this lawsuit was
filed beyond the proper statute of limitations period. In a
Decision and Entry filed September 21, 1983, this Court
sustained Defendants’ Motions for Judgment Notwithstanding
the Verdict, concluding that Plaintiffs’ action is barred by the
statute of limitations (Doc. #74). In so doing, the Court noted that
while the question of the applicable statute of limitations in a
hybrid 301 case was “open and unsettled” at the time of trial, the
United States Supreme Court had since decided the case of
DelCostello v. International Bhd. of Teamsters, 462 U.S. 151
(1983) in which it held that the proper statute of limitations in a
hybrid 301 action is the six-month statute found in § 10(b) of the
National Labor Relations Act, 29 U.S.C. § 160b (Doc. #74, at 2).
Plaintiffs thereafter appealed said Decision and Entry to the
United States Court of Appeals for the Sixth Circuit. In a Decision
filed July 22, 1985, the Sixth Circuit remanded the Plaintiffs’
case to this Court “for a determination whether plaintiffs’
January, 1981 attempt to file grievances prevented accrual of
their claim until that time.” Adkins v. International Union of
Electrical, Radio & Machine Workers, 769 F.2d 330, 337 (6th Cir.
1985).

DISCUSSION

In its Decision in this case, the Sixth Circuit concluded that
“where ... [a] union’s alleged breach of duty is in a non-

4la
Appendix F

grievance context, as here, the employees’ good-faith attempt to
exhaust their contractual remedies will prevent the accrual of
their action.” Id. at 336. The Sixth Circuit went on to state that
“there was no accrual of the claim for the purposes of the
limitation period so long as plaintiffs were making a valid, timely,
and non-frivolous attempt to pursue their contractual remedies in
reasonable good faith.” Jd. The sole question facing this Court is
whether the Plaintiffs’ January, 1981 attempt to file grievances
constituted such an attempt.'

Plaintiffs contend that in early January, 1981, certain letters,
which were admitted into evidence as Plaintiffs’ Exhibits 20 and
21, were sent by certified mail to Defendant Local 801 and
Defendant General Motors respectively (Doc. #94, at 1-2). After
reviewing all of the evidence in the record, this Court concludes
that said letters were indeed mailed by the Plaintiffs. The Court
notes that both Plaintiffs’ Exhibit 20 and Plaintiffs’ Exhibit 21 are
styled as grievances. Exhibit 20 specifically states: “This
grievance is filed on behalf of all former Frigidaire model
makers, apprentices, and upgraders at the time of Frigidaire’s
closing.” Exhibit 21 includes virtually identical language.
(Plaintiffs’ Exh. 20; Plaintiffs’ Exh. 21) (emphasis added). Based
upon the foregoing, this Court concludes that Plaintiffs did
attempt to file a grievance in January, 1981. The question which
remains, however, is whether said attempt can be characterized as
“valid, timely, and non-frivolous”. Adkins, 769 F.2d at 336.

1. All parties fully briefed the issue addressed within the body of this
decision, to wit: whether Plaintiffs’ January, 1981, attempts to file grievances
prevented accrual of the claim until that time and the further question of whether an
evidentiary hearing was needed to more fully develop the facts germane to that
issue. (Doc. #90, #91, #92). Each party eschewed the need for such a hearing. (Doc.
#90, #91, #92).

42a
Appendix F

Before determining whether the Plaintiffs’ attempt was
indeed valid, the Court must first examine exactly what the Sixth
Circuit meant when it required a valid attempt on the part of
Plaintiffs. The Court first notes that, contrary to the assertions of
Defendant General Motors, the Sixth Circuit did not require a
valid grievance, but instead required a valid attempt to file a
grievance. See Adkins, 769 F.2d at 336. Thus, the issue of whether
Defendant Local 801 and/or Defendant General Motors actually
received Plaintiffs’ letters is irrelevant. The Sixth Circuit did not
require a successful attempt, but instead merely required a valid
attempt.

Defendants appear to argue that in order to be a “valid”
attempt, an attempt must be objectively valid. In other words,
Defendants would have this Court consider validity in terms of
the potential for success. Thus, if the proper grievance procedure
is not followed, or if in fact, no applicable grievance procedure
exists, under the Defendants’ theory of objective validity, there
could be no “valid” attempt because a grievance filed under
those conditions could not possibly succeed. This Court
concludes, however, that the Sixth Circuit does not require
objective validity.

Both the Sixth Circuit and the iury determined that any
attempt by the Plaintiffs in this case to use the grievance
procedure was futile. Jd. at 336. Despite the fact that any attempt
to grieve would be futile, the Sixth Circuit did not conclude that
any attempt by Plaintiffs to grieve was automatically invalid.
Once the Sixth Circuit determined that a futile attempt could be a
valid attempt, objective validity became a non-issue. Even if an
attempt to grieve does not have a chance of succeeding, such an
attempt can still be a valid one.

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43a
Appendix F

While it is clear that the Sixth Circuit does not require
objective validity, this Court cannot conclude that the Sixth
Circuit would merely require purely subjective validity. One of
the basic ideas behind the statute of limitations is to prevent a
person who has been injured in some way from resting on his/her
oars. A person who is attempting to exhaust his/her contractual
remedies is not resting upon his/her oars. In essence, the Sixth
Circuit has concluded that it would be unfair to penalize someone
who was making a reasonable, good-faith effort to exhaust
administrative remedies before seeking judicial remedies. A
valid attempt to file a grievance is one which is made in
reasonable, good faith. In other words, the test for validity is
whether or not a reasonable person, under the circumstances,
would have believed that he/she was filing a valid grievance. This
Court bases its conclusion that a reasonable person test (as
opposed to a purely subjective test) is required upon the fact that
the Sixth Circuit itself specifically required that Plaintiffs act “in
reasonable good faith. Id. (emphasis added ).?

The Court concludes that the Plaintiffs in this case did act in
reasonable good faith, and thus, did make a valid attempt to file a

2. In addition, the Court finds the situation in the case at bar to be analagous to
a situation in which the so-called “discovery rule” comes into play. Under the
discovery rule, the time of accrual is not forever delayed. A plaintiff's ignorance as
to his/her injury will not always delay the accrual of his/her claim. Instead, his/her
claim accrues when the claimant discovers, or in the exercise of reasonable
diligence should have discovered, the acts constituting the violation.” Adkins, 769
F.2d at 335. There simply comes a point when there is noexcuse for failing to realize
that legal action is necessary. Similarly, in cases such as the case at bar, in which
administrative action can delay accrual, the ignorance of a plaintiff will not always
delay the accrual of his/her claim. There are times when there is no excuse for failing
to realize that the action which is being taken is simply not sufficient to constitute the
filing of a grievance. Thus, a reasonable person test is required.

44a
Appendix F

grievance. It is true that a number of the Plaintiffs were familiar
with the grievance procedure established by the collective
bargaining agreement. It is also true that Plaintiff Shaw attempted
to file an individual grievance regarding the issue of
classification and was told that he could not do so. However, the
Court notes that Plaintiffs were faced with a unique situation. A
worker might ordinarily file a grievance over a denial of
overtime, or a change in shift, or some other problem which is
unique to that particular worker. In such situations, filing a
grievance with the foreman seems logical, for there may well be
some action which the foreman could take to rectify the situation.
In the case at bar, Plaintiffs were faced with a situation in which
an entire class of workers felt they had been wronged. It was not
unreasonable for the Plaintiff to conclude that the usual grievance
procedure simply was not applicable to such a situation. This was
obviously not the type of problem that a foreman could rectify.
Accordingly, Plaintiffs sought relief from a higher authority.
With no help whatsoever from their employer or from their union,
Plaintiffs were attempting to protect their rights. Plaintiffs were
factory workers, not attorneys, and given the intricacies of their
collective bargaining agreement, their failure to understand that
they were not filing a valid grievance is completely
understandable.

Based upon the foregoing, the Court concludes that
Plaintiffs did, in fact, make “a valid, timely,’ and

3. The Court concludes that the issue of timeliness is simply one of the
elements to be considered in determining whether the Plaintiffs were making a
reasonable good-faith effort to exhaust their administrative remedies. Once again,
the Court notes that the situation with which the Plaintiffs were faced was unique. A
reasonable person could very well believe that the usual grievance procedures were
inapplicable, and thus, that the usual time limitations were nonbinding. The Court

(Cont'd)

45a
Appendix F

nonfrivolous* attempt to pursue their contractual remedies in
reasonable good faith.” Id. Accordingly, the Court concludes
that Plaintiffs’ January, 1981 attempt to file grievances did
prevent the accrual of their claim until that time.’ Thus, the
jury verdict must be and hereby is affirmed.

The jury having concluded the liability issues in the
captioned cause in favor of the Plaintiffs, the Court hereby refers
that captioned cause to the United States Magistrate, Michael R.
Merz, as a Special Master, pursuant to Fed. R. Civ. P. 53(b)
subject to the powers enumerated in Fed. R. Civ. P 53(c), with

(Cont'd)

does not believe that in this case the Plaintiffs knew or should have known that they
were required to take any administrative action prior to January of 1981.
Accordingly, the Court concludes that Plaintiffs’ attempt to pursue their contractual
remedy was timely.

4. The Sixth Circuit has held that “an appeal is frivolous if it is obviously
without merit and is prosecuted for delay, harassment, or other improper purposes.”
Dallo v. Immigration and Naturalization Service, 765 F.2d 581,589 (6th Cir. 1985).
In the case at bar, there is absolutely no evidence to the effect that Plaintiff's
grievance was filed for any improper purpose. Thus, the Court concludes that
Plaintiffs’ attempt to grieve was not frivolous.

5. Defendant Unions assert that even if Plaintifis’ action accrued on January
2, 1981, Plaintiffs have not met their duty to produce evidence that the action
accrued within six months of the date the lawsuit was brought on June 24, 1981
(Doc. #90, at 9). Defendants appear to argue that Plaintiffs are required to provide
evidence that they became aware of some additional Union misconduct after
December 24, 1980. This argument is without merit. Regardless of whether or not
Piaintiffs became aware of additional misconduct after December 24, 1981,
Plaintiffs possess a valid claim for their cause of action for misconduct occurring
Prior to that date, which did not accrue until some time after the Plaintiffs’ January,
1981 attempt to grieve.

46a
Appendix F

specific directions that the Magistrate assess the amount of
damages and affix the seniority rights and obligations of the
parties, pursuant to the jury verdict. Following the completion of
whatever procedures are deemed necessary by the Magistrate to
carry out the purpose of this referral, he is to provide this Court
with a Report and Recommendations to which the aggrieved
party or parties may file timely objections.

s/ Walter H. Rice
WALTER H. RICE
UNITED STATES DISTRICT JUDGE

Copies mailed to:

David L. Hall

Attorney at Law

310 Regency Ridge
Dayton, OH 45459
(Counsel for Plaintiffs)

Joseph P. Buchanan

Attorney at Law

2580 Kettering Tower

Dayton, OH 45423

(Counsel for Defendant General Motors)

Richard F. Rice

Attorney at Law

3461 Office Park Drive

Kettering, OH 45439

(Counsel for Defendant International Union)

Honorable Michael R. Merz, United States Magistrate

47a
APPENDIX G — DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED JULY 18, 1988

Nos. 83-3392, 83-3416, 83-3754,
83-3793, 83-3820

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JOHN J. ADKINS, et al., (83-3392, 83-3416),

Plaintiffs-Appeliants,
Cross-Appellees,

Vv.

INTERNATIONAL UNION OF ELECTRICAL, RADIO &
MACHINE WORKERS, AFL-CIO-CLC; LOCAL 801,
INTERNATIONAL UNION OF ELECTRICAL, RADIO &
MACHINE WORKERS, AFL-CIO-CLC,

Defendants-Appellees,

GENERAL MOTORS CORPORATION,

Defendant-Appellee,
Cross-Appellant.

48a
Appendix G

ASSOCIATION OF FRIGIDAIRE MODEL MAKERS, et al.,
(83-3754, 83-3793),

Plaintiffs-Appellants,
Cross-Appellees,

v.
INTERNATIONAL UNION OF ELECTRICAL, RADIO &
MACHINE WORKERS, AFL-CIO-CLC; LOCAL 801,

INTERNATIONAL UNION OF ELECTRICAL, RADIO &
MACHINE WORKERS, AFL-CIO-CLC,

Defendants-Appellees,
GENERAL MOTORS CORPORATION,

Defendant-Appellee,
Cross-Appellant.

FORMER FRIGIDAIRE EMPLOYEES ASSOCIATION, et al.,
(83-3820),

Plaintiffs-Appellants,
v.

LOCAL 801, INTERNATIONAL UNION OF ELECTRICAL,
RADIO & MACHINE WORKERS, AFL-CIO-CLC; etal.,

Defendants-Appellees.

49a
Appendix G

ON APPEAL from the United States District Court for the
Southern District of Ohio

Decided and Filed July 18, 1985

Before: ENGEL and MARTIN, Circuit Judges; and
PHILLIPS, Senior Circuit Judge.

BOYCE F. MARTIN, JR., Circuit Judge. These cases are all
hybrid section 301/unfair representation claims stemming from
the layoffs of various groups of employees by General Motors
Corporation. Because all the cases evolve out of the same set of
facts and present related issues concerning the application of the
six-month statute of limitations adopted in DelCostello vy.
International Brotherhood of Teamsters, 462 U.S. 151 (1983),
they were consolidated for decision. We affirm in the Adkins and
Frigidaire Employes cases and remand in the Model Makers case.

The General Motors facilities involved in this litigation were
‘originally operated by its then Frigidaire Division in the cities of
Moraine and Dayton, Ohio. At the time, Frigidaire manufactured
household appliances and automobile air conditioners. In these
plants all hourly rated employees were represented by Local 801
of the International Union of Electrical, Radio & Machine
Workers, AFL-CIO-CLC, and all were paid wages keyed to the
automobile industry, rather than the lower wages of the appliance
industry.

In 1971, General Motors was able to negotiate a lower wage
scale for its appliance workers in the Frigidaire Division. In
exchange, these workers were allowed to “flow,” or transfer, to
the higher-paying automotive jobs as openings occurred, and to
flow back to the appliance jobs to avoid layoffs when business

50a
Appendix G

declined, bumping less senior appliance workers if necessary. In
1974, the automobile air conditioner facilities were split off from
Frigidaire into the Delco Air Conditioning Division, now
Harrison Radiator Division, but the flow arrangement with the
Frigidaire appliance workers was retained. In 1976, the parties
memorialized the flow arrangement in a Bridge Agreement,
which was due to expire in September 1979. This agreement
provided that Frigidaire workers would retain their flow rights
until all employees were given an opportunity to transfer to Delco
and 900 new Delco workers were hired. Through 1979, some
2000 Frigidaire employees had transferred to Delco and some
3500 Frigidaire employees had retained but not exercised their
flow privileges under the Bridge / greement. During this period
2500 new Frigidaire employees had been hired after January 1,
1977, and held no rights under the agreement.

In 1979, General Motors decided for economic reasons to
sell the Frigidaire Division to White Consolidated Industries,
retaining just the physical plants. The current employees also
were not part of the sale. The plants were to be converted to the
production of diesei engines and the assembly of light trucks
under the company’s Chevrolet Division. The conversion process
was expected to take at least two years, during which time all their
Frigidaire employees in these plants would be laid off, except for
a few skilled craftsmen involved in the conversion.

The Unions and General Motors negotiated the effects of the
layoff in a series of meetings held between January 31 and
February 20, 1979. General Motors obtained its major objectives
— termination of the Bridge Agreement and the right to lay off by
product line rather than by seniority. The International Union also

. won its major objectives: laid-off Frigidaire workers would be
hired in the new Chevrolet plants with unbroken seniority, and the

a

SOM AER ALLE ARN AREER Rte ats Part

Sla
Appendix G

International Union and Local 801 would continue to be the
bargaining representatives of these new Chevrolet Division
employees. Apparently General Motors had planned on this in
any case. But General Motors also agreed that all laid-off
Frigidaire employees would have recall rights to Delco, which
was then running at full employment, with overtime, and
informally agreed to make efforts to get the laid-off employees
work elsewhere. Because it was apparent that no employees in the
category of model makers would be needed in the new plants, the
parties informally agreed to establish a joint committee to review
the model makers’ records for reclassification, if qualified, to
another trade classification.

This agreement was ratified on February 23, 1979, and
layoffs began shortly thereafter. The model makers were among
the first to be laid off. By the spring and summer of 1979, the
Frigidaire facilities were completely closed and were being
converted for Chevrolet. During July and August of 1979, the
Delco contract, due to expire in September 1979, was
renegotiated and the Bridge Agreement was eliminated. Other
problems soon arose and late in 1979, due to an economic
downturn, Delco laid off employees in substantial numbers,
including many of the former Frigidaire workers now working at
Delco under the transfer arrangement. In January 1981,
Chevrolet began to recall the former Frigidaire employees to the
converted plants. At this time there were no Delco employees
recalled.

On June 24, 1981, the Association of Frigidaire Model
Makers and 49 of Frigidaire’s former model makers filed a hybrid
section 301/unfair representation claim against General Motors,
the International Union, and Local 801, for the alleged failure to
promptly reclassify the model makers to other trades. Most or all

52a
Appendix G

of the model makers had regained employment with General
Motors, but they sought lost wages and seniority rights resulting
from the breach. On January 18, 1982, John J. Adkins and 488
other laid-off Delco employees, all former Frigidaire employees
who had exercised their flow options, brought a section 301/
unfair representation claim against the same defendants. They
essentially alleged that the unions violated employees’ right of
fair representation by trading their rights under the Bridge
agreement for the unions’ continued representation of the new
Chevrolet facilities. The suit also included a claim that the union
denied the employees’ right of informed and meaningful
participation in deliberation and voting under section 101(a) (1)
of the Labor-Management Reporting and Disclosure Act of 1959,
29 U.S.C. § 411(a)(1). The plaintiffs also included 327 of the
employees’ spouses, suing for loss of consortium.

In the spring of 1982, General Motors and the defendant
unions began negotiating collective bargaining agreements to
replace the 1979 agreements due to expire in September 1982. At
this time, substantial numbers of the former Frigidaire workers
were still on layoff, and their recall rights were to expire with this
agreement. General Motors offered to the unions the opportunity
to extend these recall rights for an additional two years. There
were also substantial numbers of Delco employees still on layoff,
however, and because General Motors in hiring gave preference
to laid-off General Motors employees, allowing the Frigidaire,
employees’ recall rights to expire would give greater
employment opportunities to the more senior laid-off Delco
employees. Trapped in this dilemma, the unions refused the offer
to extend the recall rights.

On October 19, 1982, laid-off Frigidaire employee Lillie
Henry filed an unfair labor practice charge with the National

53a
Appendix G

Labor Relations Board The NLRB dismissed the charge on
November 10, 1982. The Former Frigidaire Employees
Association and 207 former Frigidaire employees, including
Lillie Henry, then filed a section 301/unfair representation action
on April 1, 1983, against General Motors, the International
Union, Local 801, and the I.U.E./G.M. Conference Board, an
organization formed by the International Union to oversee labor
relations with General Motors. The plaintiffs’ central claim in
both the Frigidaire Employees and the Adkins cases was, of
course, that the unions discriminated against them in favor of the
other group of employees.

The district court dismissed the Adkins case as untimely
filed on April 15, 1983. Adkins v. General Motors Corp., 573 F.
Supp. 1188 (S.D. Ohio 1983). The Model Makers case was tried
before a jury beginning June 14, 1982, when the district court
permitted the defendants for the first time to raise the defense that
the action was barred by the statute of limitations. After a jury
verdict finding for the plaintiffs on liability, the district court on
September 21, 1983, issued a judgment notwithstanding the
verdict finding the action time-barred. Association of Frigidaire
Model Makers v. General Motors Corp., 573 F. Supp. 236 (S.D.
Ohio 1983). In the Frigidaire Employees case, the district court
granted defendants’ motion for summary judgment on October 7,
1983, again finding the action time-barred. Former Frigidaire
Employees Association v. International Union of Electrical
Workers, Local 801,573 F. Supp. 59 (S.D. Ohio 1983).

On June 8, 1983, the Supreme Court decided DelCostello v.
International Brotherhood of Teamsters, 462 U.S. 151 (1983),
holding that hybrid section 301/unfair representation claims are
subject to the six-month statute of limitations applicable to unfair
labor practice claims under section 10(b) of the National Labor

54a
Appendix G

Relations Act, 29 U.S.C. § 160(b). The decision in the Supreme
Court, however, was foreshadowed by an earlier case in this
Circuit also brought against General Motors. Badon v. General
Motors Corp., 679 F.2d 93 (6th Cir. 1982). Later this court ruled
en banc in Smith v. General Motors Corp., 747 F.2d 372 (6th Cir.
1984) (en banc), that DelCostello would be applied in all pending
hybrid section 301/unfair representation cases.

An initial issue in the Model Makers case is whether the
district court erred in permitting the defendants to amend their
pleadings so late in the proceedings. Leave to assert an
affirmative personal defense should be freely granted when
justice so requires, Fed. R. Civ. P. 15(a), but a defendant is
responsible for any prejudice caused by its untimely assertion of
the defense. See Lawson v. Truck Drivers, Local Union 100, 698
F.2d 250, 255-56 (6th Cir.), cert. denied, 104 S. Ct. 69 : 1983);
Estes v. Kentucky Utilities Co., 636 F.2d 1131 (6th Cir. 1980);
Hayden v. Ford Motor Co., 497 F.2d 1292 (6th Cir. 1974). Here,
plaintiffs were not prejudiced in their prosecution of their claim,
but they were prejudiced to the extent that they litigated the case
when a timely assertion of the defense would have made these
costs unnecessary. Their remedy was to recover their costs of
litigation, and that is what the district court ordered.

Plaintiffs in all three cases argue that DelCostello applies
only to grievance cases and should not be extended to the present
facts. The factors guiding the Supreme Court’s choice of the six-
month limitations period for unfair labor practices in section
10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b),
however, were the close similarity of “all breaches of a union’s
duty of fair representation” to unfair labor practices and the
congressional indication of the proper balance between the
employee’s interest in vindicating his rights and the national

55a

Appendix G

interests in finality in labor law and industrial peace. DelCostello,
461 U.S. at 170-71. These considerations compel application of
section 10(b) to all unfair representation claims, United Parcel
Service v. Mitchell, 451 U.S. 56, 68 n.3 (1981) (Stewart, J.,
concurring), regardless of the nature or presence of the section
301 claim. Erkins v. United Steelworkers, 723 F.2d 837, 838-39
(11th Cir.), cert. denied, 104 S. Ct. 3417 (1984); Turco v. Local
Lodge 5, International Brotherhood of Boilermakers, 592 F.
Supp. 1293 (E.D.N.Y. 1984); accord Sisco v. Consolidated Rail
Corp., 732 F.2d 1188 (3d Cir. 1984); see also Storey v. Local 327,
International Brotherhood of Teamsters, 759 F.2d 517 (6th Cir.
1985) (holding that cause of action for unfair representation is not
dependent on section 301 claim against employer). For the same
reasons, the claim against the unions in the Adkins case under the
Labor Management Reporting and Disclosure Act is subject to
the same six-month limit. Local Union 1397, United
Steelworkers v. United Steelworkers, 748 F.2d 180 (3d Cir. 1984).

Time of accrual is also an issue in each case. Aclaim accrues
under section 10(b) when the claimant discovers, or in the
exercise of reasonable diligence should have discovered, the acts
constituting the alleged violation. Shapiro v. Cook United, No.
83-3087, slip op. at 3 (6th Cir. May 17, 1985) (per curiam);
Howard v. Lockheed-Georgia Co., 742 F.2d 612, 614 (11th Cir.
1984) (per curiam); Metz v. Tootsie Roll Industries, 715 F.2d 299,
304 (7th Cir. 1983), cert. denied, 104 S. Ct. 976 (1984). In the
Adkins case, the district court found that the cause of action
accrued, at the latest, in January 1981, although the action was
not brought until January 1982. Adkins v. General Motors Corp.,
573 F. Supp. 1188, 1192-93 (S.D. Ohio 1983). Plaintiffs argue
that actual or imputed knowledge that the unions’ representation
was unfair, rather than merely knowledge of its adverse effect on
them, is necessary for accrual of the claim. Defendants argue that

56a
Appendix G

the action accrued when plaintiffs knew or should have known of
defendants’ actions and their effects. We need not resolve this
guestion, as plaintiffs have not met their duty under Fed. R. Civ. P.
56(e) to produce evidence that the action accrued within six-
months of the date it was brought. Indeed, under plaintiffs’ theory
of the case, there is no reason to believe the claim ever accrued,
for the record is devoid of any evidence of union wrongdoing that
first came to t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2004%3A1. Public record. Not legal advice.