Opposition Brief — Tractor Supply Co. v. Pryner

Supreme Court, U.S.

ye: 2B D

No. 97-123 SEP 16 1997

CLERK

In The

Supreme Court of the United States

October Term, 1996

+

VINCENT L. PRYNER,

Petitioner,

TRACTOR SUPPLY COMPANY, INC.,

Respondent.

+

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

~

BRIEF IN OPPOSITION

¢

CHARLES W. PAUTSCH

Counsel of Record

JAMes B. SHERMAN

Kerry E. Dwyer

Wessets & Pautscn, P.C.

Two Plaza East

330 East Kilbourn Avenue

Suite 1475

Milwaukee, WI 53202

(414) 291-0600

Davip L. SwIDER

Bose, McKinney & Evans

2700 First Indiana Plaza

135 North Pennsylvania

Indianapolis, IN 46204

(317) 684-5161

Counsel for Respondent

Tractor Supply

Company, Inc.

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether section 16 of the Federal Arbitration Act, 9

U.S.C. § 16, applies to collective bargaining agreements in

non-transportation industries.

li

CORPORATE STATEMENT

Respondent, Tractor Supply Company, Inc., has no

parent companies or nonwholly owned subsidiaries to be

listed pursuant to Rule 29.6.

lil

TABLE OF CONTENTS

Page(s)

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ESS ae ane ii

Re ee I ON Ss oe cease enws iv

EE cy ce dwn ec odisnvswsseneven ne 1

Reasons For Denying The Petition................. 3

1. The Seventh Circuit’s Opinion ............... 4

A. The Seventh Circuit Properly Construed

The Exclusionary Language Of Section 1

St, Ss a aa ee 4

B. The Seventh Circuit’s Decision Is Not Incon-

sistent With This Court’s Precedent ........ 7

2. The Circuit Split Is Not As Apparent Nor As

Severe As Petitioner Claims.................. 7

See RS a Aa ee ae 10

iv

TABLE OF AUTHORITIES |

Page

CASES:

American Postal Workers Union of Los Angeles, AFL-

CIO v. United States Postal Service, 861 F.2d 211

io Ee S| ENP ee Perens err Trey ry 9, 10

Asplundh Tree Expert Co. v. Bates, 71 F.3d 592 (6th

Perry ery rewire rer Te om yr 5, 6, 8, 10

Bacashihua v. United States Postal Service, 859 F.2d |

et ft | re re yery re ret eee ‘aio oo

Brisentine v. Stone & Webster Engineering Corp., 117

kB ok. Ge ef arr eT eee Pere ere e er 9

Cole v. Burns International Security Services, 105

POG TORS CPG. GA. TOR ce vn ei iia 5, 6, 8, 10

Dickstein v. duPont, 443 F.2d 783 (1st Cir. 1971)....... 8

Domino Sugar v. Sugar Workers Local 392, 10 F.3d

og es ee rere ee ree eee re Ter 9

Erving v. Virginia Squires Basketball Club, 468 F.2d

oe ge rere rere re re rr er eee 8

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20

fy: | Fee Cone ee 5 ren eer rere re: 7

Great Western Mortgage Corp. v. Peacock, 110 F.3d

See Ce Ge OE 6 05 0k ks ESN R ae cen hee ees 8, 10

Harrison v. Eddy Potash, Inc., 112 F.3d 1437 (10th

Cir. 1997) petition for cert. filed, Aug. 7, 1997

a i Sere a 8 oh ee heady eee eebesss 8

Harrison v. PPG Industries, Inc., 446 U.S. 578 (1980) ..... 6

Se Ne

TABLE OF AUTHORITIES - Continued

Page

International Union of Electrical, Radio and Machine

Workers, AFL-CIO v. Ingram Manufacturing Co.,

715 F.2d 886 (5th Cir. 1983), cert. denied, 466 U.S.

Pee SRI is wks wiki hea ebnbuah ca eernae ks Dew eS 9

Kemner v. District Council of Painting and Allied

Trades, 768 F.2d 1115 (9th Cir. 1985)............... 10

Maryland Casualty Co. v. Realty Advisory Board, 107

Sue See Cale Ge BONO os ci cavchcievcacceuas 8, 9, 10

Matthews v. Rollins Huding Hall Co., 72 F.3d 50 (7th

Sti REE «ine abnkd ws eng gud eeu cena eae aoe may 8

Occidental Chemical v. International Chemical

Workers Union, 853 F.2d 1310 (6th Cir. 1988)....... 10

O'Neil v. Hilton Head Hospital, 115 F.3d 272 (4th

ae MOWED * oh e vob anaes £040 cas caneeeee ees 8, 9

Patterson v. Tenet Healthcare, Inc., 113 F.3d 832 (8th

Re - SOOEE Ga ddndonencierakeaevas ed ure eee 6, 8, 10

Posadas de Puerto Rico v. Asociacion de Empleados,

ee BB! ge ee Re ir eam 9

Rojas v. TK Communications, Inc., 87 F.3d 745 (5th

Cs FOOD a5 as S aku esses sok eda seers 5, 8, 10

Tenney Engineering Inc. v. United Electrical, Radio

and Machine Workers, 207 F.2d 450 (3d Cir. 1953)

UU Io sides cdc cs ck oe ee 6, 8, 10

Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) ..... 7

United Paperworkers International Union v. Misco,

OE. Se rene ee GED kc ee aE Gs 0 hn ee eves 7

vi

TABLE OF AUTHORITIES - Continued

Page

STATUTES:

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BRIEF IN OPPOSITION

The decisions below, jurisdiction and statutory provi-

sions involved are accurately stated in the Petition for

Writ of Certiorari (at 2-3).

STATEMENT OF THE CASE

The Petitioner, Vincent L. Pryner (“Pryner”), filed an

initial and later amended complaint against Respondent,

Tractor Supply Company, Inc. (“TSC”), alleging that TSC

discriminated against him in the terms and conditions of

his employment in violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the Civil

Rights Act of 1866, 42 U.S.C. § 1981, and Title I of the

Americans With Disabilities Act of 1992, 42 U.S.C.

§ 12101, et seq. (TSC’s App. at 31.)! While Pryner was

employed by TSC, he was a member of a collective bar-

gaining unit represented by Chauffeurs, Teamsters, Ware-

housemen and Helpers Local No. 135 (the “Union”). The

terms and conditions of Pryner’s employment were gov-

erned by a collective bargaining agreement (“CBA”)

between TSC and the Union.

The CBA includes, inter alia, a “Grievance and Arbi-

tration Procedure” for the resolution of any disputes

“involving interpretation or application of the provisions

of this Agreement.” (Pryner’s App. at la-4a.)2 Section 11

1 “TSC’s App.” refers to the Appendix to TSC’s Petition for

Writ of Certiorari in 96-1830.

2 “Pryner’s App.” refers to the Appendix to Pryner’s Brief

in Opposition in 96-1830.

of the Grievance and Arbitration Procedure provides that

the decision of the arbitrator is “final and binding on all

parties.” (Id. at 4a.) The CBA authorizes TSC to impose

discipline on an employee, up to and including discharge,

for “just cause.” (TSC’s App. at 4.) The CBA also contains

a “No Discrimination” provision which, inter alia, pro-

hibits discrimination on the basis of race and an “Ameri-

cans With Disabilities Act” provision which addresses

TSC’s duty to make reasonable accommodations to indi-

viduals with a disability. (TSC’s App. at 30-31.)

In light of the collective bargaining agreement’s pro-

visions mandating arbitration, TSC moved to dismiss

Pryner’s claims for lack of subject matter jurisdiction or,

in the alternative, to stay, pursuant to section 3 of the

Federal Arbitration Act (“FAA”), 9 U.S.C. § 3, the district

court’s proceedings pending arbitration. (TSC’s App. at

31.) The district court denied TSC’s motion. (TSC’s App.

at 28.) Pursuant to section 16 of the FAA, 9 U.S.C. § 16,

TSC brought an interlocutory appeal of the district

court’s decision denying the stay to the United States

Court of Appeals for the Seventh Circuit (“Seventh Cir-

cuit”). (TSC’s App. at 6.) After the district court refused

to stay proceedings pending the appeal to the Seventh

Circuit, TSC applied to the Seventh Circuit for a stay of

trial. The Seventh Circuit issued an order granting the

stay pending resolution of the appeal.

The Seventh Circuit affirmed the decision of the dis-

trict court. (TSC’s App. at 1-2.) In doing so, the Seventh

Circuit initially reviewed the basis for its jurisdiction to

hear the appeal. (TSC’s App. at 6-15.) The Seventh Cir-

cuit, after analyzing the exclusionary language of section

1 of the FAA, 9 U.S.C. § 1, determined that section 16 of

aciaeiietieaalaaneitaeiaaiaainaiaimiiaal

the FAA applied to collective bargaining agreements in

non-transportation industries.%

On May 14, 1997, the Honorable John Paul Stevens,

Associate Justice of this Court and Circuit Justice for the

Seventh Circuit, issued an order granting a stay of the

trial court proceedings pending filing of a timely petition

for writ of certiorari and subsequent resolution, either by

a denial of the petition for writ of certiorari or determina-

tion on the merits, of this action before this Court. On

May 16, 1997, TSC filed a timely Petition for Writ of

Certiorari (Case No. 96-1830).

¢

REASONS FOR DENYING THE PETITION

TSC respectfully contends that this Court should

deny Pryner’s cross-petition for writ of certiorari which

seeks review of the jurisdiction of the Court of Appeals.4

3 The Seventh Circuit also stated that application of the

substantive provisions of the FAA to collective bargaining

agreements in non-transportation industries is improper

because “substantive issues in suits that are within the scope of

both the arbitration act and section 301 of the Taft-Hartley Act

[29 U.S.C. § 185] are governed by section 301.” (TSC’s App. at

26.) This issue is addressed in TSC’s Petition for Writ of

Certiorari in Case No. 96-1830. In its Petition, TSC challenges

this ruling of the Seventh Circuit and argues that the

substantive provisions of the FAA must be applied to the merits

of the case.

4 While the Petitioner poses the question presented in its

petition as a broad request for review of the applicability of the

FAA to collective bargaining agreements in non-transportation

industries, in fact, the question presented by this petition is

The Seventh Circuit held that section 16 of the FAA is

applicable to collective bargaining agreements in non-

transportation industries. In arriving at this conclusion,

the Seventh Circuit reviewed the statutory language, case

law from this Court and the other Circuits and the appli-

cation of section 301 of the Taft-Hartley Act, 29 U.S.C.

§ 185. The examination of this issue concerning the appli-

cability of section 16 of the FAA was thorough and cor-

rect. Furthermore, the split in the Circuits on this issue is

neither as severe nor apparent as the Petitioner contends.

This Court should deny the cross-petition for writ of

certiorari.

1. The Seventh Circuit’s Opinion.

A. The Seventh Circuit properly construed the

exclusionary language of section 1 of the FAA.

The FAA covers maritime transactions and transac-

tions involving commerce. 9 U.S.C. § 2. Section 16 of the

FAA, 9 U.S.C. § 16, states, inter alia, “[aJn appeal may be

taken from... an order... refusing a stay of any action

under section 3 of this title... ” This language, standing

alone, clearly gives TSC the right to appeal the district

court’s decision refusing a stay under section 3 of the

FAA. However, the FAA also contains an exclusionary

provision which states, inter alia, “nothing herein con-

tained shall apply to contracts of employment of seamen,

limited to whether section 16 of the FAA applies to collective

bargaining agreements in non-transportation industries as that

is the only section of the FAA the Seventh Circuit expressly held

applicable to collective bargaining agreements in its decision.

railroad employees, or any other class of workers

engaged in foreign or interstate commerce.” 9 U.S.C. § 1.

The Seventh Circuit properly interpreted this exclusion-

ary language to limit the exclusion to employment con-

tracts in the transportation industry. (TSC’s App. at 9-10.)

Sound principles of statutory construction support

application of this reading of the exclusionary clause.

First, one of the canons of statutory construction holds

that courts should “avoid a reading [of statutory lan-

guage] which renders some words altogether redundant.”

Cole v. Burns International Security Services, 105 F.3d 1465,

1470 (D.C. Cir. 1997), citing Gustafson v. Alloyd Co., 513

U.S. 561, 115 S. Ct. 1061, 1069 (1995), citing United States v.

Menasche, 348 U.S. 528, 538 (1955). As several courts have

noted, if the final phrase of the exclusionary clause —

“any other class of workers engaged in foreign or inter-

state commerce” — applied to all workers whose jobs have

any effect on commerce, the specific inclusion of seamen

and railroad workers would have no significance. Cole,

105 F.3d at 1470; Rojas v. TK Communications, Inc., 87 F.3d

745, 747-48 (Sth Cir. 1996); Asplundh Tree Expert Co. v.

Bates, 71 F.3d 592, 600-601 (6th Cir. 1995), citing DiCrisi v.

Lyndon Guaranty Bank, 807 F. Supp. 947, 953 (W.D. N.Y.

1992). Clearly, if Congress wanted to exclude all employ-

ment contracts from the FAA, it could have simply

excluded “contracts of employment” without any addi-

tional language.

The second canon of statutory construction which

supports this reading of the exclusionary clause is the

rule of ejusdem generis which “limits general terms which

Cole, 105 F.3d at 1471, citing Gooch v. United States, 297

a Seite ES LS

U.S. 124, 128 (1936); accord Harrison v. PPG Industries, Inc.,

446 U.S. 578 (1980). “In this case, the general phrase, ‘any

other class of workers engaged in foreign or interstate

commerce’ takes its meaning from the specific terms pre-

ceding it, ‘seamen’ and ‘railroad employees’ and, there-

fore, ‘under the rule of ejusdem generis, [it] include[s]

only those other classes of workers who are likewise

engaged directly in commerce, that is, only those other

classes of workers who are actually engaged in the move-

ment of interstate or foreign commerce or in work so

closely related thereto as to be in practical effect a part of

it.’ ” Cole, 105 F.3d at 1471, citing Asplundh, 71 F.3d 592,

598, quoting Tenney Engineering, 207 F.2d 450, 452.

Thus, the well established canons of statutory con-

struction support the Seventh Circuit’s decision. The Peti-

tioner argues that the legislative history (or, more aptly,

the legislative lobbying) of the FAA indicates that only

commercial arbitration was intended to be covered by the

FAA. However, “in a case such as this, where the statu-

tory text does not admit of serious ambiguity, and where

firmly established case law is absolutely clear on the

meaning of the statute, legislative history is, at best,

secondary, and, at worst, irrelevant.” Patterson v. Tenet

Healthcare, Inc., 113 F.3d 832, 835-36 (8th Cir. 1997), citing

Cole, 105 F.3d at 1472, citing Davis v. Michigan Department

of Treasury, 489 U.S. 803, 808-09 n. 3 (1989). This “history”

is irrelevant considering the unambiguous text.

en

B. The Seventh Circuit’s decision is not inconsis-

tent with this Court’s precedent.

This Court has never addressed the application of the

FAA to collective bargaining agreements. In Textile

Workers v. Lincoln Mills, 353 U.S. 448 (1957), this Court

held that section 301 of the Taft-Hartley Act, 29 U.S.C.

§ 301, created a body of federal common law to govern

disputes arising out of labor arbitration. However, the

majority opinion did not expressly reject the applicability

of the FAA, nor did it address it at all.

Similarly, in United Paperworkers International Union v.

Misco, Inc., this Court did not specifically hold that the

FAA does not apply to collective bargaining agreements,

but rather, in a footnote cited the exclusionary language

of the FAA and noted that the courts often look to the

FAA for guidance on labor arbitration cases. 484 U.S. 29,

40 n. 9 (1987). As the Seventh Circuit stated in its opinion,

this footnote in Misco gives no reason for its statement

and furthermore is inconsistent with this Court’s decision

in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 n.

2 (1991), “which expressly left the question open.” (TSC’s

App. at 7.)

2. The Circuit Split Is Not As Apparent Nor As Severe

As The Petitioner Claims.

The issue the Petitioner has set forth is limited to

whether collective bargaining agreements outside the

transportation industry are covered by section 16 of the

FAA. The Petitioner claims that the Circuits have taken

a

eee a mee eae eC ——

five different positions on this point. (Petition for Writ at

8.) This claim is simply incorrect.

Currently, all of the Circuits which have directly

addressed the exclusionary language with respect to indi-

vidual employment contracts have construed the exclu-

sion narrowly, limiting it to those employment contracts

covering workers engaged in the transportation of goods

in commerce. See O'Neil v. Hilton Head Hospital, 115 F.3d

272, 274 (4th Cir. 1997); Patterson v. Tenet Healthcare, Inc.,

113 F.3d 832, 835-36 (8th Cir. 1997); Great Western Mort-

gage Corp. v. Peacock, 110 F.3d 222, 226-27 (3d Cir. 1997);

Cole v. Burns International Security Services, 105 F.3d 1465,

1470 (D.C. Cir. 1997); Rojas v. TK Communications, Inc., 87

F.3d 745, 747-48 (5th Cir. 1996); Matthews v. Rollins Huding

Hall Co., 72 F.3d 50, 53 n. 3 (7th Cir. 1995); Asplundh Tree

Expert Co. v. Bates, 71 F.3d 592, 600-601 (6th Cir. 1995);

Erving v. Virginia Squires Basketball Club, 468 F.2d 1064,

1069 (2d Cir. 1972); Dickstein v. duPont, 443 F.2d 783, 785

(1st Cir. 1971). With respect to collective bargaining

agreements, the Circuits are not in complete agreement as

to the scope of the exclusion. Some Circuits, like the

Seventh, apply the same narrow construction of the

exclusion applied to individual employment agreements

to collective bargaining agreements. Maryland Casualty

Co. v. Realty Advisory Board, 107 F.3d 979, 982 (2d Cir.

1997); Tenney Engineering Inc. v. United Electrical, Radio and

Machine Workers, 207 F.2d 450, 452-53 (3d Cir. 1953) (en

banc) (cited with approval in Great Western Mortgage v.

Peacock, 110 F.3d at 227). Those Circuits that have

excluded all collective bargaining agreements from FAA

coverage often have done so with little or no discussion

—-~-~- ---9F rsis._Harrison_2_ Eddy Potash_Inc.112 E3d_1437

1454 (10th Cir. 1997), petition for cert. filed, Aug. 7, 1997

(Case No. 97-232); Domino Sugar v. Sugar Workers Local

392, 10 F.3d 1064, 1067 (4th Cir. 1993); Posadas de Puerto

Rico v. Asociacion de Empleados, 873 F.2d 479, 482 (1st Cir.

1989); International Union of Electrical, Radio and Machine

Workers, AFL-CIO v. Ingram Manufacturing Co., 715 F.2d

886, 889 (Sth Cir. 1983), cert. denied, 466 U.S. 928 (1984).

While three Circuits, in their most recent pronouncement

on the matter, have specifically stated the issue remains

undecided. Brisentine v. Stone & Webster Engineering Corp.,

117 F.3d 519, 525 (11th Cir. 1997); American Postal Workers

Union of Los Angeles, AFL-CIO v. United States Postal Ser-

vice, 861 F.2d 211, 215 n. 2 (9th Cir. 1988); Bacashihua v.

United States Postal Service, 859 F.2d 402, 405 (6th Cir.

1988) (court doesn’t determine scope of exclusion because

postal worker is “engaged in foreign or interstate com-

merce”). Thus, while there is an arguable split in the

Circuits, it is not as clear nor as severe as Plaintiff states.

Furthermore, only one other case has decided the

precise question the Petitioner raises - whether section 16

of the FAA applies to collective bargaining agreements in

non-transportation industries. See Maryland Casualty, 107

F.3d at 982. In Maryland Casualty, the Second Circuit held

that section 16(a)(2) of the FAA provided the court with

jurisdiction over an appeal of an interlocutory order

enjoining an arbitration proceeding. Id. Thus, no other

court that has addressed the precise issue posed by this

question is in conflict with the Seventh Circuit’s opinion.

TSC submits that this issue is likely to resolve itself

among the Circuits, much the same way as the Circuits

have gelled recently on the applicability of the FAA to

individual employment contracts. See, e.g., O'Neil, 115

10

F.3d at 274; Patterson, 113 F.3d at 835-36; Great Western

Mortgage Corp., 110 F.3d at 226-27; Cole, 105 F.3d at 1470;

Rojas, 87 F.3d at 747-48; Asplundh Tree Expert Co., 71 F.3d

at 600-601. First, recent cases from the Second and Third

Circuits have-reiterated the applicability of the FAA to

collective bargaining agreements. See Maryland Casualty

Co., 107 F.3d at 982; Great Western Mortgage, 110 F.3d at

227 (citing Tenney, 207 F.2d 452-53, with approval). In

addition, cases in the Ninth and Sixth Circuits have speci-

fically stated the issue is open despite earlier cases which

cursorily stated the FAA did not apply to collective bar-

gaining agreements. Compare American Postal Workers of

Los Angeles, 861 F.2d at 215 n. 2, with Kemner v. District

Council of Painting and Allied Trades, 768 F.2d 1115, 1118 n.

1 (9th Cir. 1985); Bacashihua, 859 F.2d at 405, with Occiden-

tal Chemical v. International Chemical Workers Union, 853

F.2d 1310, 1315-16 (6th Cir. 1988). In light of these events,

this matter is one better left to percolate in the courts

below.

CONCLUSION

The issue the Petitioner poses in his petition is not

worthy of review by this Court. First, the Petitioner has

exaggerated the extent of the split in the Circuits. The

split simply is not as severe as the Petitioner contends.

Second, the Seventh Circuit and the Second Circuit, the

only Circuits to consider the application of section 16 of

the FAA to collective bargaining agreements, are in agree-

ment on the issue. Because there is no direct split on this

issue, it is best left to resolve itself in the Circuit Courts

without this Court’s intervention. Finally, the Seventh

11

Circuit properly construed the exclusion to the FAA to

limit the exclusion to employment contracts in the trans-

portation industry. Due to these reasons, the Respondent

respectfully requests that this Court deny the petition for

writ of certiorari.

Dated this 16th day of September, 1997.

Respectfully submitted,

CHARLES W. PautscH

Counsel of Record

James B. SHERMAN

Kerry E. Dwyer

Wessets & Pautscn, P.C.

330 East Kilbourn Avenue

Suite 1475

Milwaukee, WI 53202

(414) 291-0600

Davip L. SwiDER

Bose, McKinney & Evans

2700 First Indiana Plaza

135 North Pennsylvania

Indianapolis, IN 46204

(317) 684-5161

Counsel for Petitioner Tractor

Supply Company, Inc.