McDonald v. City of West Branch, Michigan

PETITIONER:McDonald
RESPONDENT:City of West Branch, Michigan
LOCATION:Culpeper County Courthouse

DOCKET NO.: 83-219
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 466 US 284 (1984)
ARGUED: Feb 27, 1984
DECIDED: Apr 18, 1984

ADVOCATES:
David J. Achtenberg – on behalf of the Petitioner
Richard G. Smith – on behalf of the respondent
Richard W. Smith – on behalf of the Respondent

Facts of the case

Question

Audio Transcription for Oral Argument – February 27, 1984 in McDonald v. City of West Branch, Michigan

Warren E. Burger:

The case is submitted, and we’ll hear arguments next in Ruckelshaus against Monsanto.

We will hear arguments next in McDonald against the City of West Branch.

Mr. Achtenberg, you may proceed whenever you’re ready.

David J. Achtenberg:

Mr. Chief Justice, and may it please the Court:

Gary McDonald brought this Section 1983 action to establish that his discharge violated his rights under the Constitution.

The issue before this Court is whether he should have been forbidden to do that because of a prior arbitration decision… a decision which did not deal with the constitutional issue, a decision by an arbitrator who was not presented with and did not decide the constitutional issue.

In Alexander v. Gardner-Denver and in Barrentine v. Arkansas-Best Freight this Court held that prior arbitration awards did not bar subsequent actions under the Fair Labor Standards Act and under Title VII.

And the issue before this Court today is whether there is some reason why a different rule should apply to Section 1983 cases.

McDonald was discharged after receiving and becoming involved in the presentation of certain citizen complaints against the chief of police.

These were complaints by members of the public.

As a police officer he had received from at least six different women complaints that the chief was involved in some form of sexual misconduct or sexual assault.

He passed these on to various city officials, and an investigation of the chief ensued.

The chief was unhappy about this and threatened McDonald and threatened one of the other officers.

He told McDonald on at least two occasions that he would have his job for starting the investigation.

This harassment culminated when McDonald set up a meeting where one of the complaining women was to present certain information to the mayor in her own words.

The chief walked into that meeting and threatened the woman, he threatened McDonald.

He again said that he would have McDonald’s job for starting the investigation.

The very next day the chief announced to the city council that McDonald would be fired, and the actual firing took place the day after that.

McDonald proceeded to file a grievance under the grievance procedure provided in the collective bargaining agreement, but the grievance procedure and arbitration procedure which followed exemplified many of the problems which are involved in using arbitration in this sort of case.

McDonald was provided essentially no notice of the only charge which the arbitrator sustained against him… the charge of having committed a sexual assault on a minor female.

Until the alleged victim, Mrs. Dack, took the stand at arbitration, McDonald was never told who it was he was supposed to have assaulted, or when or where he was supposed to have assaulted her.

Did he ask for an adjournment to prepare to meet those charges?

David J. Achtenberg:

No.

The attorney assigned to him by the union did not.

Well, does that bring up the subject of waiver possibly?

Because you’re complaining about something now that he didn’t object to then.

David J. Achtenberg:

I don’t believe it can be said that he had not made the request on numerous occasions.

The question of whether he would have been entitled to a waiver under the contract is one that we have absolutely nothing in the record on.

Just as… and I think that that brings us to one of the other problems with using arbitration to resolve individual rights questions; and that is that McDonald did not control his own defense.

It was not his decision whether to ask for an adjournment or not.

David J. Achtenberg:

It was the decision–

Whose decision was it?

David J. Achtenberg:

–It was the decision of the attorney assigned to him by the union over his objection.

He… he requested… he asked the union whether he could have his own attorney present and was told he could not.

He did not even make the decision to go to arbitration.

That decision was made by the union.

The union, together with the city, without the involvement of McDonald, picked the arbitrator.

And the union’s attorney elected not to call the crucial witness who would have corroborated McDonald’s testimony; that is that the so-called Dack incident simply never occurred; that McDonald never touched Barbara Dack, that he never said anything offensive to her.

That witness was called at trial and was undoubtedly persuasive corroboration of McDonald’s testimony to the same effect.

Well, Mr. Achetenberg, is that any different than if this had, say, been a trial in a trial court of general jurisdiction, and the petitioner’s lawyer there hadn’t called a witness.

I mean that’s kind of an ineffective assistance of counsel claim, isn’t it?

David J. Achtenberg:

I don’t believe so.

The… the lack of control over your own defense in a situation in which the counsel represents you, not the interests of the union, is somewhat different than the situation where the attorney is there to represent the union’s interest.

Are you suggesting that the union had kind of a secret interest in not calling this particular witness, or just that the union lawyer wasn’t particularly diligent?

David J. Achtenberg:

We don’t know why the union’s lawyer did not call this witness.

He may have had concerns about what effects that might have on the witness, on the witness himself, who was also a union member.

Was any effort made after the arbitration hearing to find out, to raise these questions with the attorney who represented him?

David J. Achtenberg:

The original complaint in this case had the union joined in a state law pendant claim as a defendant for failure of adequate representation.

The district court dismissed that, not on the merits but on the basis that it did not want to take pendant jurisdiction over that state law issue.

Now, that has not been further pursued; at least to my knowledge that has not been pursued.

If you did not prevail here, would you have an action over in the state courts against the union or the union lawyer?

David J. Achtenberg:

I believe it would be time barred.

The issue presented to the arbitrator was not even the same issue which is presented by the Section 1983 complaint.

Under Mount Healthy v. Doyle, the issue in the 1983 complaint is one of motive, one of what was in Chief Longstreet’s mind.

Would he have decided to discharge McDonald even without the First Amendment activity?

The question the arbitrator decided was a different issue, and that was simply whether there was a justification assuming pure motive.

It’s very similar to what happened in Alexander v. Gardner-Denver where the arbitrator… in Alexander the employee was charged with having produced too many defective parts.

He was in a parts plant.

The arbitrator dealt with the issue of whether or not he produced too many defective parts and whether that was grounds under the contract for the discharge, but not with the issue of whether that was the real reason for the discharge, whether in fact racial discrimination was being masked by this justification.

Similarly here the arbitrator did not deal with the issue of whether anti-First Amendment animus, you might call it, was being masked here by the excuse of the… of the Dack incident, which… or the alleged Dack incident.

David J. Achtenberg:

I think I should deal with the argument made primarily by amicus EEAC that we need to avoid… we need to grant preclusion in this case because otherwise we will fill the courts with Section 1983 cases.

I don’t think that will happen, but before we turn to that, I think it’s important to remember that we… Congress has expressed a fundamental commitment to the vindication of this sort of right.

In 1871 when federal causes of action were few and far between, Congress thought these rights were important enough to create such a cause of action.

And again in 1976 when it passed the Civil Rights Attorney’s Fee Act, Congress expressed its belief that these cases were sufficiently important that special incentives in the way of attorneys’ fees for prevailing plaintiffs should be provided to bring them.

And I don’t think that this sort of fundamental congressional commitment should be lightly ignored; but I don’t think that considerations of judicial economy necessarily militate in favor of granting preclusion.

As this Court pointed out in Alexander v. Gardner-Denver, and I believe in Barrentine, granting a rule of preclusion will give incentives to unions and employees to skip the arbitration process and instead go directly into court, either state or federal.

Well, if the contract calls for arbitration, they can’t skip it.

David J. Achtenberg:

They could skip arbitration as to the Section 1983 case–

I’m speaking of the general claims of discharges, all the working conditions.

David J. Achtenberg:

–That’s correct.

They could not skip the Section 1983… I’m sorry… they could not skip arbitration as to their contractual claims.

Are you suggesting that perhaps the unions wouldn’t agree to arbitration in the collective bargaining agreements if that were so?

David J. Achtenberg:

It is possible that they might not agree to arbitration, but I think more likely that they would exclude specifically this sort of claim rather than doing so implicitly, as I think they have in most cases.

They might explicitly exclude this sort of claim so that although the contractual issue might be resolved in arbitration, the 1983 constitutional claim would be separated out and clearly could not be precluded from being brought in federal court.

And therefore, cases which would otherwise be resolved in arbitration, either because the employee won and got the relief he was looking for, or because he lost and for the first time realized that there were witnesses who were going to testify against him, that what seemed to him to be an obviously just cause might not seem so obvious to an impartial decisionmaker.

All of those might–

What is the status of this arbitration decision under state law?

David J. Achtenberg:

–Under state law this arbitration decision would not be given preclusive effect in a subsequent action to vindicate individual rights.

It would be given a… I’m not sure it’s identical, but very similar to the same sort of effect that the federal courts give it in–

What if the… what if the arbitration turned on why a person was fired, a factual issue, and any suit to vindicate an individual right would also turn on the same fact?

How about in… in… in a state court proceeding, which you would say would not be totally precluded as res judicata, but what about the factual determination in the arbitration under state law?

David J. Achtenberg:

–I think the answer to that is in Michigan Civil Rights Commission ex rel. Boyd v. Chrysler, in which the Michigan court said that… quoted the portion of Alexander which said that the federal court should try the case de novo.

Well, I’m asking what about… how about the trial on… how about a trial in the state court?

David J. Achtenberg:

Yeah.

That’s the… as I understand Michigan ex rel. Boyd, it is saying that in state court–

Suppose you’re wrong about that?

Suppose that that factual determination would be conclusive in the state suit.

Let’s just suppose that.

David J. Achtenberg:

–I don’t–

Then wouldn’t that have just as much impact on a 1983 suit as would a state judicial determination?

David J. Achtenberg:

–I don’t believe so.

Why not?

David J. Achtenberg:

As I believe you yourself said in Kremer, Section 1738 does not apply to arbitration awards.

It does not apply to arbitration awards because Section–

Well, yes, but suppose the state court… after all, I may have said that; I may be wrong.

[Laughter]

I frequently am.

But under state law, let’s just assume the arbitration proceeding had just as much binding effect as a judicial determination of a fact.

Now, why shouldn’t–

David J. Achtenberg:

–I think that the reasons that this Court recited in Alexander and Barrentine are at least as applicable in the First Amendment context, the 1983 context, as they were in the context of Title VII or in the context of the Fair Labor Standards Act.

Arbitrators are not judges.

Arbitrators are not bound by the rules of evidence that… that bind courts.

They do not have an… they often do not have an adequate record.

They often are not lawyers.

–Section 1738, too, speaks in terms of judicial procedures, doesn’t it, not arbitration proceedings.

It’s a federal statute that requires federal courts to give full faith and credit.

David J. Achtenberg:

It specifically refers to judicial proceedings–

Well, that wouldn’t… even if 1738 didn’t apply, as you suggest that somebody else has suggested, that still doesn’t dispose of the issue.

1738 doesn’t reach it, but why would… well, do you think the Court should be precluded from giving the same finality to a factual determination in an arbitration as a state court would?

David J. Achtenberg:

–I think… I think it would be a bad decision to do so.

And also you think inconsistent with our prior cases.

David J. Achtenberg:

Yeah.

I think it’d certainly be inconsistent with both Alexander and with Barrentine.

And the reasons that this Court set forth in those two cases I think apply at least as strongly here, because here again we have issues which involve motive, we have issues which involve a statute which has been subject to construction since 1871, and a Constitution, or in this case constitutional amendment which has been subject to construction long before that.

The… the issues presented in these cases are at least as foreign to an arbitrator as the issues presented in Barrentine, which involved a… a wage, essentially a wage dispute.

And as I believe the Chief Justice said… said in dissent in Barrentine, a civil rights case is substantially different than a wage case.

In any event, you take the position that Michigan law would not give preclusive effect to the determinations of the arbitrator?

David J. Achtenberg:

It would not in a subsequent individual rights case.

If this were a suit on the contract, they would give it the same… not exactly the same as I read the case, but very similar to the sort of deference given by the Steelworkers trilogy.

In fact, the Michigan courts have cited the Steelworkers trilogy with some regularity, just as they have cited Alexander and Barrentine.

I take it your… your people… your colleagues on the other side don’t agree with you.

David J. Achtenberg:

On?

On how much–

–Preclusive effect.

–Preclusive effect this arbitration provision would have.

David J. Achtenberg:

Well, I… I… I don’t… you know, I don’t say that I… I made that decision.

I think the Michigan courts did in–

Well, I know, but… but… but your colleagues on the other side don’t agree with you, do they?

David J. Achtenberg:

–All… all I can say is I think they’re wrong.

[Laughter]

I think my… my thinking… I think that the decision in Michigan ex rel. Boyd and in Detroit Fire Fighters pretty clearly deals with that issue.

You make a point that he wasn’t informed, your client wasn’t informed about an appeal from the arbitrator’s award.

Does the union contract provide for appeal, is the arbitration final and binding?

David J. Achtenberg:

I don’t think there is an appeal as we think of it.

There are ways of collaterally attacking the arbitration award.

Those are–

For fraud… for fraud, for example.

David J. Achtenberg:

–Yeah.

Those are available to the union, and there’s a suit for breach of fair representation which would be avail… which would be available to the employee.

But when he hired… when he joined the union, he, in effect, hired the union to represent him in all matters of this kind, did he not?

David J. Achtenberg:

I don’t believe so.

I think he “hired” perhaps involuntarily, although not in this case.

He was a member of the union.

He hired the union to represent him with regard to the contract, with regard to his rights in collective bargaining.

The–

Well, and all disputes arising under the contract.

Isn’t that covered?

David J. Achtenberg:

–Disputes under the contract.

Not–

Well, a discharge… a discharge is a dispute under the contract, is it not?

David J. Achtenberg:

–It may, and it may also be a dispute under the Constitution.

As this Court recognized, I think, in Perry v. Sindermann, your right not to be discharged for exercising your First Amendment rights is independent of any right you may have under a contract.

Even if you have no right not to be discharged under the contract, you still have the right as a public employee not to be discharged for exercise of your First Amendment rights.

May I ask you a question?

In your answers to Justice White you were considering whether the federal court might be required to follow the State of Michigan rule on preclusion.

I’d just like to ask you the converse.

Do you argue… suppose this case had been brought in state court under Section 1983; would the state court be free to make its own decision on preclusion, or would it be compelled to follow a federal rule that you advocate?

David J. Achtenberg:

I think the state court as an issue of preclusion… I believe that the correct answer is that the state court has to follow the federal rule.

If–

In other words, you’re in effect arguing that 1983 compels the result that you’re seeking.

David J. Achtenberg:

–I think the enactment of an act such as 1983 or Title VII does.

But I think that even if you applied 1738 sort of analysis, under Haring v. Prosise and I think also under Migra, this Court has held the most preclusion you can give is the preclusion that the state gives.

I’ll point out that I don’t think that the court of appeals is at all clear about what rule of preclusion it applied, since it cited no state cases and essentially relied on the restatement.

I… I want to make it clear that I don’t mean to–

Well, you can’t rely on 1738.

You can’t have it both ways.

Under 1738 a federal court can’t give any more preclusion than the state would.

But if 1738 isn’t even applicable to this case, you have a whole new ball of wax.

David J. Achtenberg:

–That’s correct.

I don’t think that you… that… I don’t think that 1738 governs here, because we do not have a state court decision.

I think if–

Judicial decision.

David J. Achtenberg:

–A state court decision or judicial decision, a decision covered by Section 1738.

If I’m wrong about that, if this Court were to reverse what it said in Kremer and say that 1738 applies, I still think we’re correct.

Right.

Was… was this arbitration award ever challenged in the Michigan courts?

David J. Achtenberg:

No, it was not.

What… what if it had been challenged and the Michigan courts upheld it, so you would have a judicial proceeding then confirming the arbitration award.

Would that make your analysis of 1738 any different?

David J. Achtenberg:

Yes, I think it would.

David J. Achtenberg:

I think it would be a question of what the person could have brought in the act in that action and who brought it.

If the action in the state court permitted the simultaneous bringing of the 1983 case, as it would, for example, in Missouri where you could both… well, at least from an administrative decision you could in Missouri; I’m not sure about arbitration… where you could both appeal the administrative decision and bring your individual rights case.

But I think if the only thing that you were permitted to join in that state court action was purely an appeal of the arbitration award, I think that would be a different issue.

I don’t mean to take anything–

Well, counsel, you seem to equate arbitration proceedings and arbitration awards with administrative proceedings.

Is that your position?

David J. Achtenberg:

–No.

I… I think arbitration awards are entitled to less deference than administrative.

Less than administrative?

David J. Achtenberg:

Less than an administrative decision.

What cases have held that?

David J. Achtenberg:

I believe Kremer did.

I think in Kremer essentially the Court said that administrators are entrusted by state law with the interpretation of statutes, while arbitrators are not.

So that I think that… you know, I don’t think that this is… I… I think it is less likely that deference should be given to arbitration awards than to an administrative proceeding by an administrator created by–

Of course, that’s argument wholly beside the point, it seems to me, if what you’re talking about is a determination of fact, of historical fact around which a case turns.

It has nothing to do with the… with the construction of the statute or anything else.

It’s a question of fact.

And it may not… and it may not be a question of res judicata, but it might be of collateral estoppel.

David J. Achtenberg:

–And I think that the reasons indicated for giving de novo review for… in Alexander or in Barrentine apply equally here; and that is that the factfinding process in arbitration does not approach that of judicial proceedings.

I… I don’t mean to take anything away from arbitration.

I don’t think it’s an insult to a specialized tribunal to say that it works best in its area of expertise.

Well, if the state court had, as Justice Rehnquist suggested, the state court had confirmed the award, I take it you would… you would think there would be more to the argument that the factual determinations of the arbitrator would be conclusive.

David J. Achtenberg:

I think there would be more to the argument.

Yes.

Quite a bit more, don’t you think?

David J. Achtenberg:

Well, I think we would be doing a great deal more analysis of what effect the state courts gave to a confirmation of an arbitration award in a subsequent individual rights case.

Yes.

David J. Achtenberg:

Arbitration is the way that Congress has decided… and I think to a great extent the state courts have decided… is a good way to handle disputes in the area of what we call industrial self-government; but industrial self-government is just that.

That’s the area where unions and management together make the rules and can change them, define the employees’ rights and can change them, define the employee… the procedure for vindicating those rights and can change them.

Well, are you suggesting that arbitration, the arbitration mechanism is not used for matters of great moment involving millions, hundreds of millions of dollars?

David J. Achtenberg:

No, I’m not… I’m not suggesting that at all.

I’m suggesting that in the–

All arbitrations aren’t just wage disputes or discharge disputes.

Many arbitrations involve huge matters of importance, and sometimes they have former judges or retired Justices of this Court as arbitrators.

They must be important.

[Laughter]

David J. Achtenberg:

–I… I don’t mean that arbitration doesn’t serve… I don’t mean that arbitration doesn’t serve in other areas as well, but the common thread in all of those is that they are the areas where the people have agreed that this is the procedure that’s going to be followed.

And this case arises in an area where Congress has defined the right… Congress has defined the procedure; the Constitution defined the rights.

Neither the union nor management could change those rights.

And I think that McDonald should have been permitted, as he was, to use the congressionally-prescribed procedure to vindicate those constitutional rights.

I’d like to reserve the remainder of my time.

May I ask one question before you sit down?

If we should conclude… and I’m not at all sure we should… but if we should conclude that you have to look to state law, either because 1738 applies or would apply if the arbitration award had been confirmed or something like that, would you agree that this case would have to go back to the court of appeals to decide what the state law rule is?

David J. Achtenberg:

I… I don’t think… I don’t think so.

They didn’t decide that, did they?

David J. Achtenberg:

No, they did not decide that issue.

And you’re suggesting we should decide it if we take that route?

David J. Achtenberg:

Well, I… I don’t think that there is… in the past, as I recall, this Court did essentially that.

I don’t think that there is a reason not to reach that issue–

Well, we don’t generally make first decisions on state law questions.

At least I’m not used to doing that.

Well, anyway, your… your view is we should decide it.

David J. Achtenberg:

–Yeah.

I think it should be… it should be decided here.

Do you think we have to decide it or not?

I thought your argument was it was irrelevant.

David J. Achtenberg:

No.

I… I don’t think you need to decide that issue, because I think… I think you only reach that issue if you decide that Section 1738 applies.

I think it would be something of a problem if we had, in fact, turned to the laws of every state to determine this… this issue.

We don’t do that under Title VII.

David J. Achtenberg:

We don’t do that under the Age Act.

We don’t do that under the Fair Labor Standards Act.

I thought your argument was that even if state law… even if in a state individual rights suit, even if the state would give conclusive… conclusive effect or preclusive effect to this arbitration award, that the 1983 suit could still go ahead.

David J. Achtenberg:

That’s exactly my position.

Do you think that’s consistent with Kremer?

You can respond to that later, if you want.

David J. Achtenberg:

Okay.

Warren E. Burger:

Mr. Smith.

Richard G. Smith:

Mr. Chief Justice, and may it please the Court:

I represent the City of West Branch, Michigan… which is a community of about 1,800 people in the middle of the lower peninsula of Michigan about 150 miles north or Detroit… their city attorney, their assistant city attorney, their city manager and their chief of police.

This is a 1983 case which was filed in the Eastern District of Michigan for the Northern Division, United States District Court, under a… after we had, through an arbitration process, discharged Mr. McDonald, the plaintiff, for cause.

The trial took about six days, five or six days, and at the conclusion and before it went to the jury, the court presented special questions for the jury’s consideration.

Incidentally, over my objection.

But those questions were approved by the plaintiff’s attorney, and those questions went to whether or not Mr. McDonald received due process on each of his claims.

And the jury answered in the case of every one of the defendants that he had received due process.

Only one of the defendants was found to be liable.

That was Chief Longstreet.

And this half a million dollar claim which was brought in that court requesting not only that money but all of the back pay and the like that this man demanded, the jury found to be worth $4,000 in actual damages and $4,000 in punitive damages.

Well, isn’t that true in every lawsuit?

Lawyers always ask for the sky and come up with something much less than that.

Richard G. Smith:

Well, it I think it goes to the fact that we are told here that in an arbitration proceeding that the arbitrator cannot design a relief that you can get in a 1983 action; and I would say to you that he’d have gotten a lot more had he won the arbitration proceeding than he did in this litigation that he brought in the United States District Court.

We’re here today to ask this Court to give preclusive claim effect to this arbitration opinion that was entered in October of 1977 and uphold the appellate court for the Sixth Circuit.

We hope that in weighing the evidence insofar as Mr. McDonald’s rights, individual rights are concerned, that you’ll also give consideration to the rights of the people up in West Branch to be free of vexatious litigation and expense as they had to put up with in this case.

Since this discharge, the record will show that Mr. McDonald has had his arbitration hearing; he has litigated his unemployment compensation benefits; he has litigated his pension benefits; and he’s filed a worker’s compensation claim alleging that he exacerbated a back injury which we… which he incurred while lifting a subject out of an automobile two years before we discharged him.

Now, we believe that the… Mr. McDonald had a fair hearing in front of that arbitrator, who incidentally is a former circuit judge of Wayne County, Judge Bowles–

Mr. Smith, did the arbitrator, in your view, have authority to determine the constitutional issue raised?

Richard G. Smith:

–I believe that he did, Justice O’Connor, and for this reason.

And what do you base that on?

Richard G. Smith:

I base it on this fact: I base it on the fact that this man’s claim in federal court was that he was put upon, intimidated, and his First Amendment rights were violated because he was engaging in union activity.

Now, that was not, I will fully agree, touched upon in the arbitration hearing because it was never raised.

Richard G. Smith:

It wasn’t raised by McDonald in his efforts to defend this case.

And it was in the contract itself, and therefore, I think that it was an arbitrable issue and should have been raised at that point in time.

This… this allusion to what Chief Longstreet did or didn’t do because he was charged with indiscretions by Mr. McDonald is something completely new.

We didn’t try that case in… in the United States District Court on that issue.

Those weren’t the questions that were put to that jury to decide.

Where that issue appears is up in the United States Supreme Court for the first time.

I would say to you that… that under that contract it’s part of the essence of the contract to raise that defense, because what we’re talking about here is whether or not this employee was fired for good cause.

And of course that issue should be raised in defense if in fact that is a defense.

Well, that doesn’t sound a lot like the First Amendment claim to me.

Richard G. Smith:

I… I don’t understand–

All right.

Richard G. Smith:

–In any event–

Well, is it your position that he could have but did not raise this claim of union activity in the arbitration?

Richard G. Smith:

–That’s absolutely correct.

So your position is he waived it by not raising it.

Richard G. Smith:

I think he waived it.

I think that his lawyers should have brought that to the attention of the arbitrator.

And I’m going to suggest to Your Honor that the reason that it wasn’t brought to the attention of the arbitrator is that the issue did he do it or didn’t he do it when it came to this discharge for taking indecent liberties with this young woman in his capacity as a police officer.

Mr. Smith, could he have gotten the punitive damages against the chief of police in the arbitration proceeding?

Richard G. Smith:

No, I don’t think he could have gotten the punitive damages, although I… I’ve given that some thought.

There is nothing that I see in the contract that doesn’t… that precludes that arbitrator from fashioning any type of relief that he wanted to fashion.

But I would suggest to you I don’t know of any instance–

Could he have given relief against the individual chief of police as well as against the city?

Richard G. Smith:

–I don’t believe so.

Because that’s the only party that… what?

Richard G. Smith:

No.

I don’t believe so, now I don’t… it would be against the city and the city only, but of course the agent of the city was the chief of police.

In… in the arbitration hearing, they developed 160 pages of transcript.

There were, as I’ve indicated, a competent arbitrator in Judge Bowles.

They were… Mr. McDonald was represented by two representatives of the union… an attorney, a labor attorney… incidentally, there was another attorney in the picture for a while representing Mr…. Mr. McDonald, and there’s the suggestion when they talk about Mr. McDonald not controlling, not having an opportunity to control the proceedings, we believe he controlled the proceedings, and we think that he was dissatisfied with that… with that attorney, and that’s why Mr. Claya came on board and took over the… took over the defense.

Richard G. Smith:

It was… this arbitration was done under the auspices of the American Arbitration Association.

The arbitrator at the close of the proceeding suggested that each party file briefs.

Briefs were filed.

The arbitrator took the matter under advisement for, oh, I don’t know, thirty days and then wrote a thirteen-page opinion in which he made findings of fact and determined that this man should be fired for cause, and that that it would be of no avail to allow him to return to his job.

We believe that preclusive effect should be given to not only… to all issues; that is, all issues that could have been raised and should have been raised.

And may I just discuss that for a moment?

Mr. McDonald, if you read the record, was streetwise.

He was the man who brought the union into this police department, which was comprised of a chief of police and three officers.

He negotiated and was a signatory to the contract.

From the inception he administered the contract because he was the union steward.

And as I’ve said, he, I am sure, was aware of that portion of the contract touching upon the inability or the fact that the city could not in any way penalize him for being in union activities, because Exhibit 4, Plaintiff’s Exhibit 4, which was offered in evidence and received, was the grievance that he had filed a few weeks or months before the other grievance which this arbitration proceeding grew out of.

And that grievance was because he was complaining that the chief of police was punishing him or intimidating him because of union activities.

Mr. Smith?

Richard G. Smith:

Yes.

The only question presented in the petition for certiorari is whether the arbitration award should have been given preclusive effect by the district court, I think.

Speaking for me at least, this kind of factual background of the characters, the people involved, doesn’t shed a great deal of light on that.

Richard G. Smith:

Well, in… in response to that, the best I can say is that I am well aware that there is no case which specifically says that an arbitration hearing can be given claim preclusion effect.

What we’re asking this Court to do is to do that, because we believe that that… in so doing, it… it’s… you’re balancing the rights of this individual against the rights of this community and–

Well, Mr. Harkins, how would that square with what the Court did in Alexander against Gardner-Denver Company in the Title VII context?

Richard G. Smith:

–Well, I think there’s a distinction between… between a Title VII action and a 1983 action.

The 1983 statute, as I understand it, was a post-Civil War statute, that it was passed in order that the states and the communities gave due process to individuals.

And in this case we believe they did give due process to this individual.

And that now that the states have developed these procedures, now that the states are giving due process, as they have, of course, for many, many years, I believe that this Court should adopt a claim preclusive rule which says when an individual such as Mr…. Mr. McDonald has had his day in court, when Mr…. when an individual like Mr. McDonald does not take advantage of appeal, when Mr. McDonald complains about his lawyers, we’re going to give it preclusive effect.

And if Mr. McDonald feels that he’s got a cause of action, sue the union, sue his lawyer for malpractice if, in fact, that’s where he believes the fault lied, not subject the West Branches of this country and these individuals from litigating up through the federal court system until we reach, in this case, the United States Supreme Court.

Mr. Smith, what you’ve just said prompts me to ask this question.

Was there a right of appeal from the arbitration award?

Richard G. Smith:

Yes, sir.

Well, that… that’s the opposite of what your colleague on the other side says, isn’t it?

Richard G. Smith:

I don’t… I don’t believe that he said that.

If… if so, I didn’t hear it.

Richard G. Smith:

There is… there is an appellate process, Your Honor, but it’s… it’s very limited, and the courts are reluctant to overturn an arbitration proceeding of any kind unless it’s shown there was fraud and the like.

So it’s… it’s limited to such things as fraud.

Richard G. Smith:

That’s true.

There isn’t anything on the merits.

Richard G. Smith:

That’s true.

It isn’t a review of the record; it is a collateral attack, is it not?

Richard G. Smith:

That would be true.

Mr. Smith, when you used the term “appeal” in answer, do you mean appeal within the arbitration structure, like to a national organization, or do you mean appeal from the arbitrator to the court?

Richard G. Smith:

To the state court.

Warren E. Burger:

Do you have anything further, Mr. Achtenberg?

David J. Achtenberg:

Just a little.

First of all, I want to make it clear that to the extent that McDonald was a signatory to the contract, he simply signed it on behalf of the union.

He was not… there is no sense in which McDonald was personally a party to this contract.

It’s a collective bargaining agreement.

Well, isn’t every member of the union a party to the contract in all practical effect and legal?

David J. Achtenberg:

No.

I believe the union–

A contract made on behalf of all the members by the union as an entity.

David J. Achtenberg:

–The union is the party of the contract, and the union as an entity has the right to enforce it.

The individuals do not.

The individuals only have… as in this case, for example, only the union has most of the rights under this contract.

Well, are you suggesting that he had never agreed to the arbitration?

David J. Achtenberg:

I’m suggesting that the… the record indicates that he did not make that decision, that the decision was made by Mr. Taft.

He did not object to it.

I do not mean to suggest that he, you know, said please don’t take me to arbitration.

That didn’t happen.

The decision was made–

Then I’m not sure… then I’m not sure what your point is about it.

He either consented to the arbitration or he didn’t.

Now, in this record it would appear beyond any question that he did consent to the arbitration.

David J. Achtenberg:

–Well, I… I… I think the record would indicate that the decision was made without his assent or dissent.

However, I don’t believe that we… this is not a situation in which we would claim that this was an involuntary arbitration.

The decision was made.

He cooperated as best he could with the union in presenting it.

Secondly, in response to the question about whether our position is consistent with Kremer, I believe at… beginning at page 1895 of the Supreme Court Reporter’s report of that decision, it becomes reasonably clear that this Court specifically distinguished between arbitration and state administrative proceedings.

For example, in discussing Alexander v. Gardner-Denver and the characteristics of arbitration, it said,

“These characteristics cannot be attributed to state administrative boards and state courts. “

The entire section… that entire section of the opinion seems to be an attempt to make it clear that this is not overruling Alexander v. Gardner-Denver or that arbitration is not covered by the same sort of deference that is due to state court decisions under Section 1738.

Thank you.

Warren E. Burger:

Thank you, gentlemen.