Petitioners Brief — William E. Arnold Co. v. Carpenters

ellis ad JAN 26

Supreme Court of the United) States

Ocroser Term, 1973 MICHAEL RODAK,

No. 73-466

WILLIAM E. ARNOLD COMPANY,

a Florida corporation,

Petitioner,

| Vv.

CARPENTERS DISTRICT COUNCIL OF JACKSONVILLE

AND VICINITY, A LABOR ORGANIZATION, AND AS AN

UNINCORPORATED ASSOCIATION, BY AND THROUGH

JOHN H. SEA, BUSINESS REPRESENTATIVE THEREOF;

AND CARPENTERS LOCAL UNION NO. 627, A LABOR

ORGANIZATION, AND AS AN UNINCORPORATED

ASSOCIATION, BY AND THROUGH EARL S. HUFF,

ASSISTANT BUSINESS REPRESENTATIVE THEREOF,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

BRIEF FOR THE PETITIONER

DANIEL R. COFFMAN, JR.,

J. P. JONES,

ALLAN P. CLARK

of

COFFMAN & JONES

Post Office Box 40089

Jacksonville, Florida 32203

’

Attorneys for Petitioner

Page

OPINIONS BELOW 1

JURISDICTION 2

yy, CONSTITUTIONAL PROVISION INVOLVED ........... 2

STATUTES INVOLVED .-ccccccccsnsnsenensntntnsnennenteces 3

QUESTION PRESENTED FOR REVIEW .................. 4

STATEMENT OF THE CASE 4

ARGUMENT 9

INTRODUCTION - 9

I. THE STATE COURTS HAVE JURISDICTION

TO ENJOIN THE BREACH OF A NO-STRIKE

CLAUSE CONTAINED IN A COLLECTIVE

BARGAINING AGREEMENT EVEN THOUGH

THE CONTRACT BREACH ARGUABLY IN-

VOLVES AN UNFAIR LABOR PRACTICE. ........ 11

A. The Supreme Court of Florida erred in hold-

ing that the state courts are preempted from

their jurisdiction to enjoin violations of no-

strike agreements where the breach of the col-

INDEX (Continued)

Page

1. Freedom to negotiate the substantive terms

of collective bargaining agreements. -........ 17

2. Mutual reliance on reciprocal promises con-

tained in the collective bargaining agree-

ment. 18

3. The national labor policy is premised upon

the assumption that the key to industrial

peace is the grievance-arbitration process

voluntarily agreed to by the parties in

their collective bargaining agreement. ... 19

4. Section 301 of the Act provides the ulti-

mate sanction to make the collective bar-

gaining process work. 21

C. Injunctive relief is absolutely necessary for the —

enforcement of no-strike promises. .............--.-- 25

CONCLUSION 27

CERTIFICATE OF SERVICE 28

TABLE OF AUTHORITIES

Cases Page

Boys Markets v. Retail Clerks, 398 U.S. 235, 77 LRRM

2257 (1970) 6, 18, 19, 24, 25, 26

Carey v. Westinghouse Electric Corporation, 375 U.S.

261, 55 LRRM 2042 (1964) .............. 11, 12, 13, 14, 16, B

Collyer Insulated Wire, 192 NLRB No. 150, 77 LRRM

1931 (1971) 8, 22, 26

Charles Dowd Box Company v. Courtney, 368 U.S. 502,

49 LRRM 2619 (1962) 16

Gateway Coal Co. v. UMW, ....... USS. ......, 85 LRRM

2049 (Jan. 8, 1974) 23, 24

H. K. Porter Company, Inc. v. NLRB, 397 U.S. 99, 73

LRRM 2561 (1970) 18

Laborers Local 423 and V&C Brickcleaning Company,

199 NLRB No. 48, 81 LRRM 1300 (1972) ............ 7, 22, 23

NLRB v. American Nat'l. Ins. Co., 343 U.S. 395, 30

LRRM 2147 (1952) 18

NLRB v. Burns International Security Services, 406 U.S.

272, 80 LRRM 2225 (1972) 18

NLRB v. Jones & Laughlin Steel Corporation, 301 U.S. 1,

1 LRRM 703 (1937) 17, 18

RCA v. IATSE, Local 780, 160 So.2d. 150, 55 LRRM 2478

(2nd DCA Fla. 1964); cert. denied 169 So.2d 390 (Fla.

1964); cert. denied 380 U.S. 973 (1965) 6

iii

TABLE OF AUTHORITIES (Continued)

Cases Page

Sheetmetal Workers’ International Association v. Florida

Heat and Power, Inc., 230 So.2d 154, 73 LRRM 2239

(Fla. 1970) 15

Sinclair Refining Co. v. Atkinson, 370 U.S. 195, 50 LRRM

2420 (1962) 25, 26

Smith v. Evening News Association, 371 U.S. 195, 51

LRRM 2646 (1962) 8, 11, 13, 14, 16, 23

Southwestern Bell Telephone Corporation v. CWA, 343

F.Supp. 1165, 80 LRRM 2513 (S.D.Tex.1972) ............-.. 21

Teamsters Local 174 v. Lucas Flour Company, 369 U.S.

95, 49 LRRM 2717 (1962) . 16, 24

Teamsters v. Oliver, 358 U.S. 283, 43 LRRM 2374 (1959) 18

Textile Workers v. Lincoln Mills, 353 U.S. 448, 40 LRRM

2113 (1957) 13, 16, 18, 20, 22

United Steelworkers of America v. American Manufac-

turing Company, 363 U.S. 564, 46 LRRM 2414 (1960) 20

United Steelworkers of America v. Enterprise Wheel &

Car Corporation, 363 U.S. 593, 46 LRRM 2423 (1960) 20

United Steelworkers of America v. Warrior & Gulf Navi-

gation Company, 363 U.S. 574, 46 LRRM 2416

(1960) 20, 22, 25

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U. S. Constitution, Article VI, Clause 2 2, 16

iv

TABLE OF AUTHORITIES (Continued)

Page

National Labor Relations Act, as amended,

(61 Stat. 136, 73 Stat. 519, 29 USC §151, et. seq.)

§1 17

§8(a)(5) 12, 17, 26

§8(b) (3) 17, 26

§8(b)(4)(D) 6, 12

§8(d) 17, 23, 26

§9(c) (1) 12

§10(k) 12

§201 17

§203 17

§203(d) 3, 19, 20, 23

§204 17

§301 15, 16, 17, 21

§301(a) 3, 16

§502 4

OTHER AUTHORITIES

H. Conf. Rep. No. 510, 80th Cong. Ist Sess.

(Labor Management Relations Act of 1947) ......._ 21

3u The

Supreme Court of the United States

Ocroser Term, 1973

No. 73-466

WILLIAM E. ARNOLD COMPANY,

a Florida corporation,

Petitioner,

Vv.

CARPENTERS DISTRICT COUNCIL OF JACKSONVILLE

AND VICINITY, A LABOR ORGANIZATION, AND AS AN

UNINCORPORATED ASSOCIATION, BY AND THROUGH

JOHN H. SEA, BUSINESS REPRESENTATIVE THEREOF;

AND CARPENTERS LOCAL UNION NO. 627, A LABOR

ORGANIZATION, AND AS AN UNINCORPORATED

ASSOCIATION, BY AND THROUGH EARL S. HUFF,

ASSISTANT BUSINESS REPRESENTATIVE THEREOF,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

BRIEF FOR THE PETITIONER

The Temporary Restraining Order issued by the Circuit

Court of the Fourth Judicial Circuit in and for Duval County,

2

Florida is not reported. P.App.la; A. 37.1/ The Opinion and

Order of the District Court of Appeal, First District, State of

Florida, denying the Respondent-Union’s Suggestion for Writ

of Prohibition is reported at 248 So.2d 179, 78 LRRM 2208.

P.App.3a. The Opinion of the Supreme Court of Florida is

reported at 279 So.2d 300, 83 LRRM 2033, P.App.8a.

JURISDICTION

The judgment of the Supreme Court of Florida was entered

on April 18, 1973. A timely Petition for Rehearing was denied

by the Supreme Court of Florida on July 20, 1973. A. 47; P.

App.15a. The Petition for Writ of Certiorari was filed with

this Court on September 11, 1973, and was granted on De-

cember 3, 1973. The jurisdiction of this Court is invoked pur-

suant to 28 U.S.C. §§1257(3), 2101(c).

CONSTITUTIONAL PROVISION INVOLVED

Article VI, Clause 2, U. S. Constitution:

“This Constitution, and the laws of the United States

which shall be made im pursuance thereof; and all

treaties made, or which shall be made, under the au-

thority of the United States, shall be the supreme law

3

of the land; and the judges in every State shall be

bound thereby, any thing in the Constitution or laws

of any State to the contrary, notwithstanding.”

STATUTES INVOLVED

1. Section 203(d) of the National Labor Relations Act,

as amended, 29 U.S.C. §173(d):

“Final adjustment by a method agreed upon by the

parties is hereby declared to be the desirable method

for settlement of grievance disputes over the applica-

tion or interpretation of an existing collective-bargain-

ing agreement. The Service (Federal Mediation and

Conciliation Service) is directed to make its concilia-

tion and mediation services available in the settlement

of such grievance disputes only as a last resort and in

exceptional cases.”

2. Section 301(a) of the National Labor Relations Act as

amended, 29 U.S.C. §185(a):

“Suits for violation of contracts between an employer

and a labor 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 juris-

diction of the parties, without respect to the amount

in controversy or without regard to the citizenship of

the parties.”

4

QUESTION PRESENTED FOR REVIEW

Whether the state courts have jurisdiction to enjoin the

breach of a no-strike clause contained in a collective bar-

gaining agreement where the breach also arguably involves

an unfair labor practice.

STATEMENT OF THE CASE

Petitioner, William E. Arnold Company (hereinafter referred

to as Amold), is a general contractor with its principal place

of business located in Jacksonville, Florida. When the work

stoppage at issue arose, Amold was in the process of con-

structing the Jacksonville General Hospital in Jacksonville,

Florida, at a cost of 23 million dollars.2/ A.12-13; 15.

Arnold is a member of the Associated General Contractors

of America, Northeastern Florida Chapter (AGC). For many

years, Arnold has had a collective bargaining agreement with

the Respondents, Carpenters District Council of Jacksonville

and Vicinity and its local affiliates (hereinafter referred to

as the “Carpenters Union” or the “union”). At all times ma-

terial to the action of the trial court below, a collective bar-

gaining agreement was in effect between Amold and the

5

negotiated through the local AGC Chapter. A.14,19; R.VoLII,

Part XII. Article VI of the collective bargaining agreement

contained a no-strike provision which reads as follows:

“There shall be no work stoppage, slowdown, work

cessation or strike because of a jurisdictional dispute.

A mutually agreeable settlement, or joint decision of

the international unions involved, or decision or inter-

pretation of the National Joint Board for Settlement of

Jurisdictional Disputes (or Hearing Panel) shall be

binding and all parties agree to accept such decision

or interpretation.” A.21-22. (See attachments to union's

Suggestion for Writ of Prohibition, R.VolI, Part VI.)

One of Arnold’s subcontractors on the Jacksonville General

Hospital job had a collective bargaining agreement with the

Wood Wire and Metal Lathers International Union, AFL-CIO,

of this work by the subcontractor to the Lathers Union gave

rise to a dispute between the Lathers Union and the Car-

penters Union members who were employed by Amold. A.

15-16. On April 21, 1971, the Carpenters Union members

Arnold’s subcontractor to the Lathers Union members.3/

After the strike had begun, Amold filed a Complaint on

6

tion prohibiting the Carpenters Union from violating the no-

strike promise contained in Article VI of the collective bar-

gaining agreement entered into between the parties. A.12.

Telephonic notice of hearing was given to the parties prior

to the evidentiary hearing conducted before the Duval Coun-

ty Circuit Court. A.10,37. At the hearing on Amold’s Appli-

cation for Temporary Restraining Order, counsel for the

union moved to dismiss the Complaint on the grounds, inter

alia, that the court’s jurisdiction to adjudicate the breach of

the collective bargaining agreement was preempted by fed-

eral law. A8-11. On April 23, 1971, the Honorable Roger J.

Waypbright, Circuit Judge in and for Duval County, Florida,

issued a Temporary Restraining Order prohibiting further

breaches of the no-strike promise contained in the collec-

tive bargaining agreement. A.37; P.App.la. The Carpenters

Union thereafter filed a Suggestion for Writ of Prohibition

with the District Court of Appeal, First District, State of

Florida. In its Suggestion for Writ of Prohibition, the union

an unfair labor practice under Section 8(b)(4)(D) of the

National Labor Relations Act, the state courts had been pre-

empted of jurisdiction to remedy the contract breach. A. &

11.

The Florida District Court of Appeal denied the union's

Suggestion for Writ of Prohibition. 248 So.2d 179; P.App.3a.

In denying the union’s Suggestion for Writ of Prohibition, the

Florida District Court of Appeal reasoned that under the au-

thority of Boys Markets o. Retail Clerks, 308 U.S. 235, 74

LRRM 2257 (1970), and RCA v. IATSE, Local 780, 160 So.

2d 150, 55 LRRM 2478 (2nd DCA Fla.1964), cert. denied 169

So0.2d 390 (Fla. 1964); cert. denied 380 U.S. 973 (1965), the

state courts were not preempted of their jurisdiction to en-

force a no-strike clause in a collective bargaining agreement

7

even where the contract breach was arguably an unfair labor

practice. 248 So.2d at 180-81; P.App.3a, 6a-8a.

The union then filed a Petition for Writ of Certiorari with

the Supreme Court of Florida. A. 3-5. Certiorari was granted

and the Supreme Court of Florida entered its opinion and

judgment on April 18, 1973, vacating the decision of the

Florida District Court of Appeal. A.7; 279 So.2d 300; P.App.

8a-13a. In its majority opinion, the Supreme Court of Florida

held that since the union’s contract breach arguably involved an

unfair labor practice, the National Labor Relations Board

had exclusive jurisdiction. In concluding that the state courts

had been preempted of their jurisdiction to enjoin the con-

tract breach, the Supreme Court of Florida found that:

“The decisive issue is whether or not the activity en-

joined is arguably an unfair labor practice, not whether

it is also a contract breach.” P.App.1la.

In a dissenting opinion, concurred in by Justice Drew, Jus-

tice Dekle found that, since the parties had expressly agreed

to a no-strike clause and to arbitrate the dispute underlying

the strike, the state courts had not been preempted of their

jurisdiction to enforce the contractual intent of the parties.

Justice Dekle also found that the majority opinion of the Su-

preme Court of Florida was in direct conflict with the Na-

tional Labor Relations Board’s decision in Laborers Local 423

and VC Brickcleaning Company, 199 NLRB No. 48, 81

LRRM 1300 (1972). Justice Dekle further reasoned that both

parties should honor their contract commitments and that:

. To do otherwise is to encourage needless and

protracted litigation. To avoid such litigation and en-

suing delay is the purpose of arbitration and such con-

8

tract provisions, to help unclog the busy courts and

boards of this teeming land.”

279 So.2d at 303; P.App.14a.

Amold, thereafter, timely filed a Petition for Rehearing

with the Supreme Court of Florida. The Petition alleged that

the court below apparently overlooked or failed to consider

prior decisions of both this Court and the National Labor

Relations Board which had expressly rejected the claim of

preemption where a contract breach also arguably involved

an unfair labor practice. See Smith ov. Evening News Asso-

ciation, 371 U.S. 195, 51 LRRM 2646 (1962); Collyer Insu-

lated Wire, 192 NLRB No. 150, 77 LRRM 1931 (1971). A.

47-49. Various local chapters of the Associated General Con-

tractors of America, the Florida State Chamber of Commerce,

and numerous other employers having collective bargaining

agreements in the State of Florida, filed amicus curiee briefs

in support of the Petition for Rehearing. R. Vol. II, Parts XII,

XIII, XIV, XV, XVI, XVII, XVIII. On July 20, 1973, in a

4 to 3 decision, the Supreme Court of Florida denied the

Petition for Rehearing. P.App.15a.

On September 11, 1973, Arnold filed a Petition for Writ

of Certiorari with this Court seeking review of the Supreme

Court of Florida’s decision. The Petition was granted on

December 3, 1973.

9

ARGUMENT

INTRODUCTION

The decision of the court below is in direct conflict with

prior pronouncements of this Court and presents questions

of critical importance regarding the viability of our national

labor policy. Compulsory arbitration, without resort to strike,

over jurisdictional work assignment disputes is no longer a

viable option under the Supreme Court of Florida’s decision

in this case. The devastating effects of this ruling on the

construction industry are obvious. Jurisdictional disputes are

common occurrences in the construction industry. For many

years construction contractors and construction trades unions

have voluntarily agreed to submit jurisdictional disputes for

final and binding arbitration to the National Joint Board for

the Settlement of Jurisdictional Disputes, Building and Con-

struction Industry. But even more serious than the catastro-

phic effects to construction industry employers and unions

is the rationale of the ruling below that no breach of a col-

lective bargaining agreement which arguably involves an un-

fair labor practice can be remedied in the state courts. This

ruling undermines the entire structure of our national labor

policy which encourages peaceful enforcement of voluntarily

agreed upon grievance-arbitration processes.

Specifically at issue is the question of whether or not the

state courts of Florida lack jurisdiction to enforce no-strike

promises in collective bargaining agreements where the dis-

pute underlying the strike is also arguably an unfair labor

practice under the National Labor Relations Act. If the col-

lective bargaining process is to survive, then the peaceful

resolution of industrial disputes through the grievance-arbi-

tration procedure must be recognized as the very heart of

10

the collective bargaining process. The ability of the grievance-

arbitration adjustment procedure to pump life into the col-

lective bargaining system has been struck a deadly blow by

the decision of the court below.

The primary purpose of the National Labor Relations Act

is to set up the legal framework which will promote collec-

tive bargaining and make the collective bargaining process

work. As will be demonstrated below, the decision of the

Supreme Court of Florida flies in the face of national labor

policy by: 1) undercutting freedom to negotiate substantive

terms of collective bargaining agreements; 2) destroying mu-

tnal reliance between employers and unions that each will

abide by his respective contract commitments; 3) making the

ion process meaningless and ineffectual; 4)

destroying the law force necessary to insure that the respon-

sibilities undertaken in the collective bargaining process will

be carried out; and 5) failing to recognize that injunctive

relief is absolutely essential to enforce no-strike commit-

ments.

11

I. THE STATE COURTS HAVE JURISDICTION TO EN-

JOIN THE BREACH OF A NO-STRIKE CLAUSE CON-

TAINED IN A COLLECTIVE BARGAINING AGREE-

MENT EVEN THOUGH THE SONTRACT BREACH

ARGUABLY INVOLVES AN UNFAIR LABOR PRAC-

TICE.

A. THE SUPREME COURT OF FLORIDA ERRED IN

HOLDING THAT THE STATE COURTS ARE PRE-

EMPTED FROM THEIR JURISDICTION TO EN-

JOIN VIOLATIONS OF NO-STRIKE AGREEMENTS

WHERE THE BREACH OF THE COLLECTIVE

BARGAINING AGREEMENT IS ALSO ARGUABLY

AN UNFAIR LABOR PRACTICE.

The court below was faced with the question of whether

a state court loses its jurisdiction to enforce a collective bar-

gaining agreement where the alleged breach of the agreement

also involves an unfair labor practice. This same basic issue

has previously been posed before this Court on at least two

different occasions. See Carey vo. Westinghouse Electric Cor-

poration, 375 U.S. 261, 55 LRRM 2042 (1964); Smith v. Eve-

ning News Association, 371 U.S. 195, 51 LRRM 2646 (1962).

In Carey v. Westinghouse Electric Corporation, supra, a work

assignment dispute arose between the IUE Union, which

represented the “production and maintenance workers” of

Westinghouse Electric, and the Federation Union, which rep-

resented “all salaried and technical employees” of Westing-

house. IUE and Westinghouse were operating under a col-

lective bargaining agreement which contained a grievance-

arbitration procedure to resolve “disputes concerning the in-

terpretation, application or claimed violations of the agree-

ment.” TUE filed a grievance claiming that certain Federa-

tion employees in the engineering laboratory were perform-

12

ing “production and maintenance work.” Westinghouse re-

fused to arbitrate and IUE thereafter filed a suit in the New

York state court seeking an order compelling arbitration.

Westinghouse’s contention that the controversy involved a

question of representation for the National Labor Relations

Board was upheld in the New York state courts which refused

to order arbitration of the work assignment dispute. The

New York Court of Appeals reasoned that the subject mat-

ter of the grievance was within the exclusive jurisdiction of

the NLRB since it involved a question of representation. 11

N.Y.2d 452, 230 N.Y.S.2d 703, 50 LRRM 2740 (N.Y.App.

1962).

On certiorari review, this Court reversed the holding of

the New York Court of Appeals and held that the state courts

were not preempted of their jurisdiction to compel arbitra-

tion of IUE’s work assignment dispute. Carey o. Westing-

house Electric Corporation, 375 U.S. 261. The Court found

that the work assignment dispute could arguably be char-

acterized as either 1) a controversy as to whether certain

work should be performed by the IUE bargaining unit or the

Federation bargaining unit; or 2) a dispute as to which

union should represent the employees doing the disputed

work. The Court reasoned that whether the dispute were

viewed as a “jurisdictional dispute” or a question of “repre-

sentation,” a remedy existed before the NLRB.4/ In holding

that the existence of a remedy before the NLRB did not

oust state courts of their jurisdiction to order arbitration, the

Court emphasized the Congressional policy favoring voluntary

settlement of work assignment disputes found in Section

10(k) of the Act:

4. See §§8(b)(4)(D) and 10(k) of the Act co jurisdictional

tes and §§8(a) (5) and 9(c) (1) covering th ty to bargain

wre tinewF -t questions, respectively.

13

“Since §10(k) not only tolerates but encourages vol-

untary settlement of work assignment controversies be-

tween unions, we conclude that grievance procedures

pursued to arbitration further the policies of the Act.”

375 U.S. at 266.

Carey v. Westinghouse Electric Corporation, supra, is so

closely analogous to the facts in the case at bar that any

distinguishing factors appear to be more nice than obvious.

In the case sub judice, as was true in Carey v. Westinghouse,

there was a work assignment dispute between two unions. In

both cases, one of the parties sought to avoid its contract

commitment to arbitrate the dispute by contending that the

state courts were preempted from exercising jurisdiction to

enforce the intent of the parties. In Carey 0. Westinghouse,

the state court action was filed to compel arbitration of the

work assignment dispute. In the case at bar, the employer

sought to enjoin the breach of an express no-strike agree-

ment, coupled with mandatory grievance-arbitration proce-

dures contained in the collective bargaining agreement be-

tween the parties. A.12,14-17. If there is any real difference

between the case sub judice and Carey 0. Westinghouse Elec-

tric Corporation, that difference can accurately be described

as two different sides of the same coin. The grievance-

arbitration process is the quid pro quo in the collective bar-

gaining process for the union's no-strike promise. Textile

Workers o. Lincoln Mills, 353 U.S. 448, 40 LRRM 2113

(1957).

This Court’s decision in Carey v. Westinghouse Electric

Corporation consistently reflected the previous pronounce-

ment of the Court made in Smith o. Evening News Asso-

ciation, supra. In Smith o. Evening News, an employee

14

brought suit in the Michigan state courts seeking to recover

damages for the breach of a collective bargaining agreement

allegedly committed by the employer. The Supreme Court of

Michigan affirmed the Michigan trial court's dismissal of

the action, holding that the contract breach was within the

exclusive jurisdiction of the National Labor Relations Board |

because the contract breach also involved an unfair labor

practice. Smith o. Evening News Association, 106 N.W.2d

785, 362 Mich. 350 (Mich.1961). The decision of the Su-

preme Court of Michigan in Smith v. Evening News was re-

versed by this Court, which held that the suit filed in the

Michigan trial court actually arose under Section 301 of the

Act and that the jurisdiction of the state courts to enforce

the breach of the collective bargaining agreement was not

preempted by the NLRB. 371 U.S. 195. In so holding, this

Court in the Smith case stated:

“The authority of the Board [NLRB] to deal with an

unfair labor practice which also violates a collective ©

bargaining contract is not displaced by §301, but it

is not exclusive and does not destroy the jurisdiction

of the courts in suits under §301.” 371-U.S. at 197.

In direct contradiction of the above holdings of this Court

in Smith v. Evening News Association, supra, and Carey v.

Westinghouse Electric Corporation, supra, the Supreme Court

of Florida held in the case sub judice that state court juris-

diction to enforce a collective bargaining agreement is pre-

empted by the NLRB where federally prohibited practices

are involved. The court below reasoned that:

“_ . The decisive issue is whether or not the activity

enjoined is arguably an unfair labor practice, not

whether it is also a breach of contract.” (Emphasis sup-

plied.) 379 So.2d at 302, P.App.lla.

15

The court below also premised its holding on a prior de-

cision of the Supreme Court of Florida rendered in Sheet-

metal Workers’ International Association v. Florida Heat and

Power, Inc., 230 So.2d 154, 73 LRRM 2239 (Fla.1970). Ak

though the Florida Supreme Court's decision in Sheetmetal

Workers’, supra, did not involve an attempt to enjoin a strike

which was in breach of a collective bargaining agreement,

the Supreme Court of Florida erroneously reasoned that:

“_.. In Radio Corporation of America v. Local 780

International Alliance of Theatrical Employees, AFL-

CIO, 160 So.2d 150 (Fla.App.2d, 1964), relied on by

the District Court, there was no allegation that the

strike enjoined constituted an unfair labor practice as

well as a breach of contract. In Boys Market v. Retail

Clerks Union, 398 U.S. 235 (1970), also cited by the

District Court [Florida], there was likewise no unfair

labor practice involved. It is these cases which should

have been distinguished from the case at bar, not

Sheetmetal Workers’. The decisive issue is whether or

not the activity enjoined is arguably an unfair labor

practice, not whether it is also a breach of contract.”

(Emphasis added.) 279 So.2d at 302; P.App.10a-lla.

In rendering its decisiod, the Supreme Court of Florida

failed to meet its duty to apply federal substantive law in

suits brought under Section 301 of the Act. Instead the court

below applied its own notion of the federal preemption doc-

trine erroneously set forth in Sheetmetal Workers’, supra.5/

5. In Sheetmetal Workers’ the Florida

the case at bar.

16

It is well settled tthat both the state and federal courts have

jurisdiction over actiions to enforce collective bargaining agree-

ments. See e.g. Charles Dowd Box Company v. Courtney, 368

U.S. 502, 49 LRRM 2619 (1962). In such cases, state law

may be applied onlly to the extent that it is compatible with

the purposes of Serction 301(a) of the Act and where state

law is applied, it iis absorbed into federal law. See Textile

Workers Union v. Lincoln Mills, supra. In esence, state

federal substantive law under Section 301 of the Act. Textile

Workers Union v. Lincoln Mills, supra; Charles Dowd Box

Company v. Courtmey, supra; Teamsters Local 174 v. Lucas

Flour Company, 369 U.S. 95, 49 LRRM 2717 (1962). The

federal substantive labor law controlling here was clearly de-

lineated by this Cowrt in Carey 0. Westinghouse Electric Cor-

poration, supra, andi Smith o. Evening News Association, supra.

That Federal subst:antive labor law is “the supreme law of the

land” and was undlermined by the decision of the court be-

low. U.S. Const., Article VI, Clause 2.

B. THE DECISION BELOW UNDERMINES THE EN-

TIRE FRAMEWORK OF THE COLLECTIVE BAR-

GAINING PROCESS.

The Supreme Court of Florida’s decision renders unenforce-

able certain collective bargaining contract promises. If the

breach of a collecitive bargaining agreement also happens to

be an unfair labow practice, the Supreme Court of Florida

would deny the mon-breaching party any remedy to enforce

the contract promise in the state court system. The court

below has thus pllaced its imprimatur on industrial strife as

a substitute for peaceful resolution of industrial disputes.

17

The primary purpose of the National Labor Relations Act

is to set up the legal framework which will promote collec-

tion 1 of the Act, 29 USC §151. Even a cursory review of

the Act reveals that there are four major conditions precedent

to the achievement of industrial peace through the collective

bargaining process. First, Congress recognized that both

employers and unions must have freedom to negotiate the sub-

stantive terms of their collective bargaining agreements. Sec-

tion 8(d) of the Act, 29 USC §158(d). Secondly, an econ-

omy based upon contractual commitments must be imbued

with mutual reliance on reciprocal promises. Both employers

and unions should expect that each party will abide by his

respective contract commitments. Thirdly, Congress recog-

nized that industrial controversies could best be resolved

through a voluntarily agreed upon grievance-arbitration proc-

ess. Sections 201, 203 and 204 of the Act, $9 USC §§171,

173, 174. Finally, Congress put teeth in the*national labor

policy by providing the law force necessary to insure that

responsibilities undertaken in the collective bargaining proc-

ess would be carried out. Sections 8{a){5), 8(b)(3), and

301 of the Act; 29 USC §§158(a)(5), 158 (b)(3), 185.

As will be demonstrated infra, the decision of the court

below can only serve to undermine the collective bargaining

process and generate industrial strife.

1. Freedom to Negotiate the Substantive Terms

of Collective Bargaining Agreements.

This Court has long recognized, im carrying out the ex-

pressed intent of Congress, that employers and unions should

have broad latitude in negotiating the terms of their collective

bargaining agreements. See e.g. NLRB v. Jones & Laughlin

18

Steel Corp., 301 U.S. 1, 45, 1 LRRM 703 (1937). The Court,

in accord with Section 8(d) of the Act, has consistently

held that neither the NLRB nor the courts have the power

to dictate the substantive terms of collective bargaining agree-

ments. E.g. NLRB v. Burns International Security Services,

406 U.S. 272, 80 LRRM 2295 (1972); H. K. Porter Company,

Inc. v. NLRB, 397 U.S. 99, 102, 73 LRRM 2561 (1970);

Teamsters v. Oliver, 358 U.S. 283, 43 LRRM 2374 (1959);

NLRB ov. American Nat'l. Ins. Co., 343 U.S. 395, 30 LRRM

2147 (1952).

An effect of the decision below is to take away the free-

dom to bargain for a grievance-arbitration process to resolve

jurisdictional disputes or any other contract dispute which

might arguably involve an unfair labor practice. If a promise

not to strike is not enforceable through the courts, the griev-

ance-arbitration process will soon lapse into non-use.6/ See

Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 248 (1970).

2. Mutual Reliance on Reciprocal Promises Contained

in the Collective Bargaining Agreement.

The mutual exchange of promises involved in the collective

bargaining process is the initial lubricant that makes the col-

lective bargaining machinery work. A no-strike promise on

the part of the union is the quid pro quo for the grievance-

arbitration machinery in the collective bargaining system.

Textile Workers v. Lincoln Mills, supra. In the court's opinion

below, the no-strike promise, which lies at the very heart of

6. The construction industry and the various

19

industrial peace, is rendered meaningless and unenforceable

in the Florida state courts. If a no-strike agreement is un-

enforceable, then the employer has failed to receive the con-

sideration bargained for in exchange for the grievance-arbi-

tration process. The intent of the parties to the collective

bargaining agreement is thus frustrated and mutual reliance is

thereby destroyed. A system which lacks mutual reliance and

the respect of its participants cannot long survive. In Boys

Markets, supra, the Court pointed out the “devastating impli-

cations for the enforceability of arbitration agreements” that

would result from denial of injunctive relief for breaches of

no-strike obligations:

“[A] no-strike obligation, express or implied is the quid

pro quo for an undertaking by the employer to submit

grievance disputes to the process of arbitration. . . .

Any “incentive for employers to enter into such an

agreement is necessarily dissipated if the principal and

gation can be enforced is eliminated.” 396 U.S. at 248.

3. The National Labor Policy is Premised Upon the As-

sumption that the Key to Industrial Peace is the Griev-

ance-Arbitration Process Voluntarily Agreed to by the

Parties in Their Collective Bargaining Agreement.

By enacting Section 203(d) of the Act, Congress expressly

recognized that a voluntarily agreed upon grievance-arbitra-

industrial disputes. Section 203(d) of the Act provides in part

that:

“Final adjustment by a method agreed upon by the

parties is hereby declared to be the desirable method

for settlement of grievance disputes over the applica-

20

tion..of am existing collective-barguining sgreement.

In the case at bar, the parties have expressly agreed in

duie ativan temmnial pe ee ere

putes are to be settled peacefully and without resort to strike.

A. 21-22. The method preferred by our national labor policy

has been undercut by the decision of the court below.

In fostering the Congressional policy contained in Section

203(d) of the Act, this Court has long recognized that in-

dustrial stability is best effectuated by the substitution of

arbitration for industrial strife. See e.g. Textile Workers o.

Lincoln Mills, supra; United Steelworkers of America v. Ameri

can Manufacturing Company, 363 U.S. 564, 46 LRRM 2414

(1960); United Steelworkers of America 0. Warrior & Gulf

Navigation Company, 363 U.S. 574, 46 LRRM 2416 (1960);

United Steelworkers of America v. Enterprise Wheel & Car

Corporation, 363 U.S. 593, 46 LRRM 2423 (1960). In Steel-

workers 0. Warrior & Gulf, supra, this Court expressly acknowl-

edged that our national labor policy could best be effectuated |

under a collective bargaining agreement containing both an

arbitration provision for all unresolved grievances and an

absolute prohibition of strikes. 363 U.S. at 578, fn. 4. The

collective bargaining agreement in the case sub judice contains

would best achieve the federal labor policy. Article VI of the

collective bargaining agreement provides in part that:

“There shall be no work stoppage, slowdown, work

cessation or strike because of a jurisdictional dispute.

A mutually agreeable settlement, or joint decision of

the international unions involved, or decision or inter-

pretation of the National Joint Board for Settlement of

-

21

Jurisdictional Disputes (or Hearing Panel) “shall be

binding and all parties agree to accept such decision

or interpretation.” A. 21-22.

The Supreme Court of Florida’s decision that a no-strike

promise is unenforceable, even where a grievance-arbitration

procedure was received in exchange, is patently untenable.

See Southwestern Bell Telephone Corporation v. CWA, 343

F.Supp. 1165, 80 LRRM 2513 (S.D. Tex.1972). The necessary

effect of this ruling is to relegate all work assignment dis-

putes, and any other contract dispute which arguably involves

an unfair labor practice, beyond the reach of arbitrators or

upon the construction industry where jurisdictional disputes

are common occurrences. The decision below opens Pandora's

box to rampant wildcat strikes and chaos in the construction

industry.

4. Section 301 of the Act Provides the Ultimate Sanction

to Make the Collective Bargaining Process Work.

in the federal courts over labor organizations. It expressed

a national policy that collective bargaining agreements should

; Management Relations Act as an amendment to the

tWaat ‘ActI. mulated in onory of $901 fo —s

agner . ve

[Wagner Act). ane ieeae a collective bargaining contract,

be enforced by the courts on behalf of or against labor organi-

zations. Textile Workers o. Lincoln Mills, supra. Court en-

forcement of the grievance-arbitration machinery promotes

industrial peace by making both parties assume a higher de-

gree of responsibility to live up to their contract commitments.

Steelworkers 0. Warrior & Gulf, supra; Textile Workers o. Lin-

coln Mills, supra.

The National Labor Relations Board has expressly recog-

nized that it has concurrent jurisdiction with the courts over

actions which are both a contract breach and also arguably

an unfair labor practice. Laborers Local 423 and V&C Brick-

cleaning Co., 199 NLRB No. 48, 81 LRRM 1300 (1972);

Collyer Insulated Wire, 192 NLRB No. 150, 77 LRRM 1931

(1971). The Board’s decision in Laborers Local 423, supra,

involved a jurisdictional work assignment dispute in which

the two contending unions had expressly agreed to submit

such disputes to the National Joint Board for the Settlement

of Jurisdictional Disputes, Building and Construction Indus-

try. In that case, the Board initially deferred its jurisdiction

over the work assignment dispute because the parties had

agreed upon a voluntary method of adjustment.

into and then come before this Board

for a more favorable resolution to the dispute.” 81

LRRM at 1301.

This NLRB policy of deferring jurisdiction is consistent with

2B

Section 203(d) of the Act and long since recognized by this

Court. See e.g. Carey v. Westinghouse Electric Corporation,

supra; Smith v. Evening News Association, supra.

The court below has in effect told employers and unions

that they must submit all contract disputes which arguably

involve unfair labor practices to the NLRB. The NLRB, un-

der its Collyer deferral doctrine, will not entertain the dis-

pute either where the parties have agreed on a mandatory

grievance-arbitration process in their collective bargaining

agreement. E.g. Laborers Local 423 and V&C Brickcleaning

Co., supra. This leaves the parties in a no-man’s land where

self-help is the only means of recourse.

The long standing national labor policy, which favors en-

rendered in Gateway Coal Company v. UMW, .._. US.

........, 85 LRRM 2049 (Jan. 8, 1974). In Gateway Coal Com-

pany v. UMW, supra, the parties had expressly agreed to a

detailed grievance procedure and broad arbitration clause

providing for final and binding arbitration of (inter alia) any

local trouble of any kind arising at the mine. A dispute arose

between the mineworkers and Gateway concerning the ade-

quacy of safety precautions and recordings of airflow in one

of the mines. The mineworkers engaged in a work stoppage

to force two foremen off the job who allegedly were not

making the proper recordings of airflow in the mine. Gate-

way then offered to arbitrate the question as to whether the

mine was rendered unsafe by the presence of the two fore-

men in the mine, but the union refused. When the strike

continued, Gateway filed suit in the United States District

Court for the Western District of Pennsylvania seeking to

24

LRRM 2634 (W.D.Pa.1971). The District Court found that

the dispute giving rise to the work stoppage was arbitrable

and issued a Boys Markets injunction. See Boys Markets o.

Retail Clerks, 398 U.S. 235, 74 LRRM 2257 (1970). Sub-

sequently an impartial arbitrator ruled that the safety dis-

pute was arbitrable and found without merit the union's claim

that the mine was unsafe under the direction of the two

foremen.

The United States Court of Appeals for the Third Circuit

then reversed the judgment of the District Court in favor of

Gateway and vacated the preliminary injunction. 466 F.2d

1157, 80 LRRM 3153 (3rd Cir. 1972). In Gateway, the Third

Circuit Court of Appeals reasoned that public policy dictated

a finding of non-arbitrability where safety disputes were al-

ee a general and non-specific grievance-

arbitration procedure. See Section 502 of the Act, 29 USC

$143. On certiorari review, this Court reversed the decision

of the Third Circuit and upheld the power of the District

Court to enjoin the strike. In Gateway, this Court again

recognizes that grievance-arbitration machinery is the key to

industrial peace. The Court’ reasoned that a good faith be-

lief, unsupported by objective evidence of an emergency, that

a grievance involves a safety dispute will not preclude the

issuance of a no-strike injunction. Although the collective

bargaining agreement in Gateway contained no express agree-

ment prohibiting work stoppages, a no-strike promise was

implied because of the existence of final and binding con-

tract arbitration machinery. Accord, Teamsters Local 174 o.

Lucas Flour, supra.

Unlike the grievance dispute underlying the strike in Gate-

way, the work assignment dispute between the parties in the

"

>

case at bar does not even involve an alleged threat to the

safety of the Carpenters Union members. Furthermore, the

work assignment dispute here was not merely “arguably arbi-

trable”8/ it was expressly subject to mandatory grievance-

arbitration procedures and an express promise not to strike.

There are thus even more compelling circumstances in the

case at bar for upholding the state trial court’s Temporary

Restraining Order which enjoined the union’s illegal work

stoppage. If “safety grievances” are not sui generis and are

subject to compulsory arbitration without strike, then work

arbitrable umbrella of national labor policy.

°

C. INJUNCTIVE RELIEF IS ABSOLUTELY NECESSARY |

FOR THE ENFORCEMENT OF NO-STRIKE PROM-

ISES.

In Boys Markets, Inc. v. Retail Clerks, supra, this Court rec-

ognized the vital importance of the injunction as a tool to

enforce no-strike promises. In Boys Markets, a dispute arose

between the members of the Retail Clerks Union and some

non-union employees working for Boys Markets. The dis-

pute in that case involved a work assignment controversy be-

tween members of the Retail Clerks Union and non-union

employees who were employed by Boys Markets. In order

to force a resolution of that dispute, the Retail Clerks Union

went on strike. At the time of the strike, the union and the

employer were operating under a collective bargaining agree-

ment which contained an express no-strike pledge. In over-

ruling the Court's prior decision in Sinclair Refining Co. v.

8. See United Steelworkers of America v. eae? Eas

tion Co., supra, where the Court first articulated the ly

arbitrable” doctrine - doubts should be resolved in favor .of

a

Atkinson, 370 U.S. 195, 50 LRRM 2420 (1962), the Court in

Boys Markets upheld the power of a federal district court to

issue an injunction against the strike. The Court also pointed

out that injunctive relief to enforce a no-strike obligation

should be available in both state and federal courts. 306 U.S.

at p. 246.

_ The court below has ruled that state court injunctive relief

will not be available to either employers or unions whenever

the breach sought to be enjoined arguably involves an unfair

labor practice.9/ This decision will provide a gaping loophole

for evading collective bargaining promises. Employers faced

with wildcat strikes over any issue denominated as either a

“jurisdictional dispute” or a dispute which “arguably involves

an unfair labor practice,” must either capitulate or risk an in-

Freedom to negotiate the substantive terms of collective

part of both employers and unions to live up to their con-

tract commitments. The potential deterrent of injunctive re-

met. The Supreme Court of Florida’s decision is premised

on the erroneous notion that industrial strife should continue

until such time as the NLRB initially determines whether it

will exercise jurisdiction over a work assignment dispute or

decline such jurisdiction. Contrary to the court below, the

NLRB has consistently ruled that it will defer its concurrent

jurisdiction in favor of the parties’ agreed-upon arbitration

process. E.g. Collyer Insulated Wire, supra. See 279 So.2d

9. ee ee elie aaa ta anne ae :

ve an

Cree ete, BOD Gr the Ret Caliper Tantlated Wires Pas

27

at 303; P.App.l4a. Rather than promoting the expeditious

and peaceful settlement of industrial controversies, the deci-

sion of the Florida Supreme Court will only add fuel to the

fire of potential industrial strife.

CONCLUSION

For the foregoing reasons, it is respectfully submitted that

the Decision and Order of the Supreme Court of Florida be

reversed.

Respectfully submitted,

COFFMAN & JONES

Post Office Box 40089

Jacksonville, Florida 32203

Attorneys for Petitioner

By Daniel R. Coffman, Jr.

J. P. Jones

Allan P. Clark

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of the Brief for

the Petitioner have been furnished by United States first

class mail on this 24th day of January, 1974, to the following:

Robert H. Bork

Solicitor General

Department of Justice

Washington, D.C. 20530

Joseph S. Farley, Jr., Esquire

Mahon, Farley & Vickers

350 E. Adams Street

Jacksonville, Florida 32202

VA

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