Textron Lycoming Reciprocating Engine Division, Avco Corp v.United Automobile, Aerospace and Agricultural Implement Workers of America

PETITIONER:Textron Lycoming
RESPONDENT:United Automobile Workers
LOCATION:Randon Bragdon’s Dental Office

DOCKET NO.: 97-463
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 523 US 653 (1998)
ARGUED: Feb 23, 1998
DECIDED: May 18, 1998

ADVOCATES:
Stephen A. Yokich – Argued the cause for the respondents
Timothy B. Dyk – Argued the cause for the petitioner

Facts of the case

Textron Lycoming Reciprocating Engine Division and the United Automobile, Aerospace and Agricultural Implement Workers of America and its Local 187 are parties to a collective-bargaining agreement that required Textron to notify the Union before entering into any agreement to “subcontract out” work that would otherwise be performed by Union members. In 1994, Textron announced plans to subcontract out work that would have caused approximately one-half of the Union members to lose their jobs. Subsequently, the Union filed suit, alleging that Textron had fraudulently induced the Union to sign the collective-bargaining agreement. The complaint invoked section 301(a) of the Labor Management Relations Act, which confers federal subject matter jurisdiction over “suits for violation of contracts” between an employer and a labor organization. The District Court dismissed the complaint for lack of subject-matter jurisdiction, concluding that the cause of action alleged did not come within section 301(a). The Court of Appeals reversed.

Question

Does section 301 of the Labor-Management Relations Act permit a union to sue in federal court to declare a collective bargaining agreement voidable in the absence of any alleged violation of the agreement?

William H. Rehnquist:

We’ll hear argument now in Number 97-463, Textron Lycoming Reciprocating Engine Division v. United Automobile, Aerospace and Agricultural Implement Workers of America.

Mr. Dyk.

Timothy B. Dyk:

Mr. Chief Justice and may it please the Court:

In 1994, the petitioner employer and the respondent union in this case engaged in collective bargaining required by the National Labor Relations Act and by the decisions of the National Labor Relations Board.

And the union alleges that in the course of that bargaining the employer failed to supply information that it was obligated to supply concerning subcontracting plans, one of the questions being whether that was a mandatory or permissive subject of bargaining under the act.

And the union first brought its claim before the National Labor Relations Board alleging that the employer had committed an unfair labor practice by failing to bargain in good faith under sections 8(a)(5) and 8(d) of the act.

And apparently dissatisfied with the progress of this complaint before the board, the union then brought an identical action, making exactly the same charges, seeking virtually the same relief, in Federal district court as a declaratory judgment action, purportedly pursuant to section 301 of the National Labor Relations Act, and the board proceeding has been tentatively settled.

A settlement was approved by the regional director last week, and the board has granted limited relief, ordering that certain provisions of the contract be set aside and awarding back pay but refusing to grant the broad relief that the union had requested, which would be invalidation of the entire contract.

Sandra Day O’Connor:

May I ask a preliminary question?

The contract has expired?

Timothy B. Dyk:

The contract has expired and the parties are in the process of attempting to negotiate a new agreement.

Sandra Day O’Connor:

And there’s been a strike in the interim by the union?

Timothy B. Dyk:

That is correct, Justice O’Connor.

Sandra Day O’Connor:

Why isn’t this whole thing moot?

We don’t have a contract any more.

There’s been some limited relief granted.

Why should… why is there anything left for us?

Timothy B. Dyk:

Well, we think that the matter should have been resolved by the board proceedings, but as far as the mootness of the court proceeding is concerned the union still claims damages based on the identical facts that led it to request the declaratory judgment and that issue would be unaffected, in the union’s view, by the board’s settlement.

William H. Rehnquist:

Well, didn’t the collective bargaining agreement also provide for the payment of survivor’s benefits for a certain number of years after the contract expired?

Timothy B. Dyk:

There are a variety of issues which could arise under the collective bargaining agreement because, of course, the effect of that agreement wasn’t limited to the 3-year period of the agreement, so for all of these reasons we think there’s no real issue of mootness in this case.

Rather, the issue here is whether the district court had jurisdiction under section 301 and, in our view, the language of section 301 is quite plain.

It provides for suits for violation of collective bargaining agreements.

There’s no question here of any violation.

There’s no allegation that the employer has committed a violation of the–

Ruth Bader Ginsburg:

But Mr. Dyk, you concede if it came up defensively it would properly be a matter for the court.

Say the union violated the no-strike clause and the union’s answer to that is, this whole contract is no good because it was induced by fraud.

Timothy B. Dyk:

–Well, Justice Ginsburg, yes, we do agree that if there had been an alleged violation of the agreement and a declaratory judgment were sought, that there had been no violation, that that would be a matter properly within the district court’s jurisdiction.

Of course, all the parties agree here that in the course of that proceeding the law that would be applied would be board law, in other words, the good faith bargaining requirements crafted by the board pursuant to the act, so–

Ruth Bader Ginsburg:

But nonetheless there’s nothing about the issue that identifies it as an issue only for the board and never for the courts.

Timothy B. Dyk:

–That’s correct, and what this Court has done, as we understand it, it has said that pursuant to the act, that you can have an affirmative suit that’s brought in the courts or an unfair labor practice charge before the board that may involve defenses, defenses before the board concerning contracts, defenses in the courts concerning the interpretation of the act, and that has been brought up in cases like Kaiser Steel.

Timothy B. Dyk:

But the courts have… this Court has recognized a distinction between bringing something as an affirmative matter and bringing it as a defensive matter.

For example, in Communications Workers v. Beck, which was not a case exactly like this but it involved the duty of fair representation, this Court held that the employer’s alleged violation of 8(a)(3) of the act could be raised as a defense to the claim, but that an 8(a)(3) claim could not be asserted at the outset in Federal court, and there’s a good reason–

Antonin Scalia:

But Mr. Dyk, isn’t it the whole purpose of the Declaratory Judgment Act to enable you to anticipate your defenses instead of having to wait for a lawsuit by the other side?

Isn’t the whole purpose of it to enable the union, for example, in this case to come into court and say, we do not intend to live up to this agreement.

We’re going to strike, and we think we have a right to strike because the agreement is invalidated by the fraud at the beginning, and we want a declaratory judgment to that effect.

It seems to me a classical declaratory judgment action.

Timothy B. Dyk:

–Justice Scalia, I think it is not a classic declaratory judgment action in the sense that this Court has held repeatedly in the Franchise Tax Board case, in Skelly Oil and a number of others, that the Declaratory Judgment Act can’t expand the jurisdiction of the Federal court.

William H. Rehnquist:

It isn’t a grant of jurisdiction at all, is it?

It’s just a procedural device where a court has jurisdiction.

Antonin Scalia:

Correct, Mr. Chief Justice.

Now, if the court had jurisdiction because there had been a violation of the act and there was a controversy over whether there had been a violation of the act, of course there would be jurisdiction under 301(c).

Of the contract.

Timothy B. Dyk:

Yes, a violation of the contract, but that–

Antonin Scalia:

That’s his claim.

That’s what the declaratory judgment claims.

Timothy B. Dyk:

–No.

Antonin Scalia:

The declaration judgment says the other side claims that I am in violation of the contract, and I say I am not.

Timothy B. Dyk:

No, Justice Scalia.

There is no claim here that anybody has violated the contract.

The only claim is that the court–

Antonin Scalia:

There’s never a claim that has violated a declaratory judgment.

It’s always anticipatory, right?

Are you saying that they just didn’t use the right words, that the union should have come in and said, we are about to strike and we want a declaratory judgment that this will not be a violation of the act.

Timothy B. Dyk:

–Well, they–

Antonin Scalia:

Would that have been okay?

Timothy B. Dyk:

–If they said we are about to strike and we’d like a declaration, that would not be this case.

I would think that if it got to the point of being an anticipatory repudiation similar to Dowd Box–

Antonin Scalia:

Right.

Timothy B. Dyk:

–Yes, you could.

Antonin Scalia:

Okay.

Timothy B. Dyk:

But that’s not this case.

There are–

Antonin Scalia:

Okay.

Timothy B. Dyk:

–There has been no violation, no alleged violation, and we suggest that when Congress said suits for violation it was very clear that there had to be a suit over a violation of the contract.

There is no suit over a violation of the contract here.

They were asking the district court to declare that at some future time if they chose to do it they could engage in a strike which otherwise might be in violation of the contract, so there was no present controversy about a violation or even an anticipated violation of the agreement.

Stephen G. Breyer:

Can you… can the… suppose the employer says to the union representative, if you go out on strike, I will sue you for breaching this contract.

He says that.

So the union representative says, I would like a declaration that you have no lawsuit.

He brings the suit.

Can he do that in a declaratory judgment action?

Timothy B. Dyk:

I think there are certainly some circumstances where–

Stephen G. Breyer:

Well, let’s say the circumstance is a) my basis as union representative is I think you have to have an offer and an acceptance to have a contract and here there was no offer, or there was no acceptance.

Timothy B. Dyk:

–If the dispute is over a violation of the agreement, yes–

Stephen G. Breyer:

No.

The dispute is… this is the dispute.

The employer says, if you go out on strike, I will sue you.

The union says, if you sue, you will lose.

Why?

Because there is no contract.

There was no offer, or alternatively there was no acceptance.

I don’t agree, says the employer.

Fine, says the union.

I’ll bring a declaratory judgment action.

Can they do it?

Timothy B. Dyk:

–I think under some circumstances that could be brought.

Stephen G. Breyer:

What about the circumstances I just mentioned?

Timothy B. Dyk:

No, I’m suggesting, under the circumstances you just mentioned, you could imagine, yes, that there would be section 301 jurisdiction.

Stephen G. Breyer:

Yes, all right.

If the answer to that is yes, now we have exactly the same dialogue but substitute for the words, offer and acceptance, the reason your contract is not valid is it was obtained by fraud.

Timothy B. Dyk:

Well, it isn’t the question of what the basis for the claim is.

Stephen G. Breyer:

No, the reason that you cannot sue me for a breach of contract is because the contract doesn’t exist, and the reason it doesn’t exist is because it was obtained by fraud.

Timothy B. Dyk:

Justice Breyer, I agree that there may be circumstances in which something has gotten to the point where there is a real dispute about whether there would be a violation of the contract which possibly could be brought into Federal court.

This isn’t that situation.

What this situation is, where you have an exactly parallel proceeding in district court and what you have is an effort in essence to bring unfair labor practice charges into court rather than to bring them before the board, and Congress when it enacted section 301 could not have possibly contemplated that.

Indeed, the legislative history shows quite clearly that Congress was very concerned about overlapping affirmative jurisdiction between the board and the courts, and they said that one of the provisions of the original Taft-Hartley Act would have given the board jurisdiction to determine compliance with contracts.

Anthony M. Kennedy:

Well, in Justice Breyer’s first hypothetical, could the offer and acceptance dispute have been remitted to the board?

Timothy B. Dyk:

The offer and acceptance dispute could have been remitted to the board.

Anthony M. Kennedy:

Why wouldn’t there be concurrent jurisdiction, or conflicting jurisdiction in that case just as well as here?

Timothy B. Dyk:

In some circumstances conflicting jurisdiction is tolerated and will exist.

The problem is that if you are allowed to bring this kind of proceeding, this kind of abstract proceeding before there has been a real dispute about whether the contract was violated, what you would be doing is to in essence say, virtually any unfair labor practice charge can be framed as a declaratory judgment matter to be brought into court.

Anything having to do with the collective bargaining, the obligation to bargain in good faith could be brought into court on the theory that there might be in some future time a dispute about the ability to strike under the contract.

John Paul Stevens:

Mr. Dyk, may I just ask this.

You say anything covers… is it not correct, at least the union says in their brief that you took the position before the board that this fraud was not a mandatory subject of bargaining and therefore was not subject to review by the board.

Timothy B. Dyk:

Well, that’s correct, Justice Stevens, and I think that’s exactly why this matter belongs before the board, because of course the distinction between mandatory and permissive subjects of bargaining under this Court’s decision in First National Maintenance is a very difficult line to draw, one that the board has struggled with again and again over the years, and if it’s a mandatory subject of bargaining there is the obligation to supply the information to the union, but if it is a permissive subject of bargaining the obligation does not exist to supply the information to the union.

William H. Rehnquist:

Well, why do we have to decide that it belongs somewhere else?

All we have to decide here is whether or not it fits the definition of whether this is an action for violation of a contract and if it isn’t that, it doesn’t belong in court.

Maybe it belongs before the board, maybe it doesn’t.

Timothy B. Dyk:

That’s exactly correct, Mr. Chief Justice, and we suggest that–

John Paul Stevens:

Yes, but you have argued that the better forum is the board, and that argument kind of falls apart if the forum isn’t there.

Timothy B. Dyk:

–No, no, but Justice Stevens, it’s exactly because of the difficult distinctions between mandatory–

John Paul Stevens:

Right.

Timothy B. Dyk:

–and permissive subjects of bargaining that this case belongs before the board.

The board ought to be deciding whether there was an obligation to supply the information or not supply the information.

That turns on whether it was a mandatory or permissive subject of bargaining.

The courts are ill-equipped to make that kind of determination.

That’s something that–

John Paul Stevens:

Are you suggesting that even if it was not a mandatory subject of bargaining, that the company could commit fraud in the negotiation and there would be no remedy for the fraud?

Timothy B. Dyk:

–No, absolutely not.

I think there are two separate issues here.

Timothy B. Dyk:

One is misrepresentation.

John Paul Stevens:

Right.

Timothy B. Dyk:

Which under Truett–

John Paul Stevens:

Which they alleged.

Timothy B. Dyk:

–That would apply to mandatory and permissive subjects of bargaining.

John Paul Stevens:

Right.

Timothy B. Dyk:

But the main part of the charge here is that there was a request for information, that we didn’t supply the information.

John Paul Stevens:

Oh, okay.

Timothy B. Dyk:

And that turns on the distinction between mandatory and permissive subjects of bargaining.

John Paul Stevens:

But insofar as they’re alleg… their claiming there was an active misrepresentation or a fraud, you would agree that could be remedied by the board.

Timothy B. Dyk:

Absolutely.

John Paul Stevens:

Oh, okay.

Timothy B. Dyk:

There’s no license to lie, whether it’s a mandatory or permissive subject of bargaining.

Anthony M. Kennedy:

Mr. Dyk–

–Does the board have jurisprudence cases on misrepresentation and fraud?

Timothy B. Dyk:

Yes.

I mean, this Court’s decision in Truett Manufacturing discusses the obligation to engage in honest bargaining, and the board has implemented that in a large number of cases.

David H. Souter:

Mr. Dyk, you may have answered this.

I may have missed it.

But you said there is some subjects in which jurisdiction may be concurrent and some not.

Where do you draw the line?

How do we draw the line?

Timothy B. Dyk:

Well, the line, Justice Souter, that I’m suggesting that you draw is between matters that are asserted as defense, either contract defenses before the board or unfair labor practice defenses in court, as opposed to allowing affirmative jurisdiction.

That is, to bring contract issues in the first instance before the board or bring unfair labor practice charges before the courts.

Ruth Bader Ginsburg:

But that does–

–Mr. Dyk, what about the Mack case?

Do you agree that that was properly a case for the court under 301?

That is, an employer that said, the union says we’ve got no contract.

We say we do have a contract.

Court, tell us we have a contract.

Timothy B. Dyk:

There was, if my recollection is correct, a dispute about a violation in the Mack case, the original… the Third Circuit case that preceded this one and yes, that probably was within… that was probably correctly decided.

Antonin Scalia:

What about a classic contract dispute as to whether there was a meeting of the minds?

I mean, there’s no violation of the Labor Relations Act.

There’s not an unfair labor practice if the minds have not met.

Timothy B. Dyk:

Well, there can be an unfair labor practice under those circumstances.

Refusal to execute an agreement, Justice Scalia, that the parties have reached can be a violation of 8(d) of the act, but yes, there–

Antonin Scalia:

Well, there’s been no violation so far.

Nobody has… nobody claims a violation, but the union wants to have it clearly established that there is a collective bargaining agreement.

Timothy B. Dyk:

–There may be, Justice Scalia, some small number of cases in which there is no board remedy available to a party in the union’s situation.

Antonin Scalia:

And no Federal court remedy.

Timothy B. Dyk:

And no Federal court remedy as an anticipatory matter but, of course, when there is a violation that can be asserted as a defense, but we don’t think that the existence of that small number of cases should drive the decision here.

I mean, in the vast majority of situations there is a remedy before the board, and the board is the place to go.

Antonin Scalia:

Not in the vast majority of anticipatory situations, surely.

Timothy B. Dyk:

I think that in the vast majority of anticipatory situations there is a remedy before the board.

If you allow people to go into court… I’ll give another example, that if there is an unfair labor practice alleged to occur during the performance of a contract the union can claim that it has a right to strike in violation of the no-strike clause… that’s Mastrow Plastics… and what the union could do under those circumstances is go into court and say, we’d like a declaratory judgment that we’re entitled to strike because the employer engaged in unfair labor practices.

If you’re an inventive lawyer either on the union’s side or the employer’s side you can craft a declaratory judgment action that would bring a whole range of unfair labor practice charges effectively before the Federal courts–

William H. Rehnquist:

Mr.–

Timothy B. Dyk:

–thereby bypassing the board.

William H. Rehnquist:

–An aggrieved… either the employer or the union can go into State court, can they not, under the Dowd case?

Timothy B. Dyk:

Yes.

William H. Rehnquist:

So it isn’t as if they can’t get into Federal court under section 301 they have no judicial remedy.

They can go to State court.

Timothy B. Dyk:

Well, that’s a possibility, Mr. Chief Justice, and the Ninth Circuit has held that if there’s no unfair labor practice potential before the board you can go into State court and apply State law.

That is a difficult question which–

William H. Rehnquist:

Well, why is it difficult after the Dowd Box case?

Timothy B. Dyk:

–It’s not difficult as to whether you could go into State court or not.

I think the difficult issue is whether you would apply State or Federal law when you went into State court.

William H. Rehnquist:

Yes, but that’s something that isn’t involved here, certainly.

At least there is some sort of judicial forum in which this dispute could be resolved, even though you can’t get into Federal court under 301.

Timothy B. Dyk:

But our argument, Mr. Chief Justice, would mean that you could not go into State court under section 301 either, because the scope of Federal jurisdiction and the scope of State jurisdiction are the same.

Timothy B. Dyk:

Both are governed by section 301.

Both require suits for violation, so you could not go into State court and seek a declaratory judgment under–

William H. Rehnquist:

You think that’s a result of the Dowd Box case?

Timothy B. Dyk:

–I believe it is, Mr. Chief Justice.

Antonin Scalia:

Which means that you’d have some of the law of labor contacts made by State law rather than by Federal law, which is seemingly what the act envisions, or what we’ve said the act envisions.

Timothy B. Dyk:

Well, our position, Justice Scalia, is that there isn’t any room for State law here, that even if you went into State court, that you would have to apply Federal law, but that the State court no more than the Federal court can give declaratory relief under these circumstances.

Antonin Scalia:

So that there would be no remedy, to answer the Chief Justice’s first question.

If you concede that the State courts could not apply State law, there would be no remedy.

Timothy B. Dyk:

I have conceded that there is some small class of cases in which there would be no anticipatory remedy.

Antonin Scalia:

Anticipatory.

Timothy B. Dyk:

But you could always assert it as a defense.

David H. Souter:

And the reason for no anticipatory remedy comes down simply to plain language, I take it.

In other words, it’s not necessary to preserve board jurisdiction because there are some cases in which, as you say, there would be no conflict with board jurisdiction, so it’s a straight plain language theory, in effect that the language of 301 trumps the normal rule which would allow a declaratory judgment.

Timothy B. Dyk:

Yes.

We’ve suggested that the language is very plain, and the lower court in the–

David H. Souter:

But that’s all.

I mean, you don’t… basically your argument is not an argument based upon the preservation of board jurisdiction.

It’s an argument based on the statutory text, period.

Timothy B. Dyk:

–Our section 301 argument–

David H. Souter:

Yes.

Timothy B. Dyk:

–is based on statutory text–

David H. Souter:

Yes.

Timothy B. Dyk:

–and the legislative history, but we have also argued alternatively that there is Garmon preemption here even if you could somehow shoe this… shoe-horn this in within section 301, that the Evening News exception to Garmon preemption only applies, as this Court said in Lockridge, where the cause of action requires a construction of the collective bargaining agreement.

Here, no construction of the collective bargaining agreement is remotely involved and therefore we suggest that Garmon preemption, that is, Garmon primary jurisdiction.

William H. Rehnquist:

Are you saying that if the union brought an action simply for a violation of the contract and… that there might be preemption of that sort of a claim?

Timothy B. Dyk:

We’re suggesting that if the union brought an action for violation of contract which did not depend in any way on the interpretation of the contract, which is the scope of the Smith v. Evening News exception, there might not be jurisdiction under those circumstances.

William H. Rehnquist:

Well, but the statute speaks quite plainly.

It says you can bring an action for violation of a contract.

How could there not be jurisdiction?

Timothy B. Dyk:

Well, I think it’s not, Mr. Chief Justice, so much a question of “jurisdiction”.

Timothy B. Dyk:

It’s more a question of 301, but that the primary jurisdiction doctrine might apply.

That’s what Garmon is when you’re dealing with Federal law issues.

But the primary jurisdiction doctrine might say you should resort to the board even though the district court has technical jurisdiction.

Ruth Bader Ginsburg:

Well, why wouldn’t you make that argument–

–Well, that’s a strange doctrine.

–here, that the election… if it’s primary jurisdiction, they went to the board first, but I don’t think you’re making any kind of election of remedies argument that… this union did go to the NLRB a year before coming to court, right, so–

Timothy B. Dyk:

That’s correct, and the matter is still pending before the board.

Ruth Bader Ginsburg:

–So why aren’t you making any kind of primary jurisdiction argument with respect to that?

Timothy B. Dyk:

Well, I think in essence we are.

When we talk about a Garmon… the Garmon doctrine applying here, even if there’s technical jurisdiction under section 301, what we’re saying is the court should leave it to the board under those circumstances, particularly when you have a board proceeding pending and, most particularly, when there’s no construction of the contract that’s involved.

After all, that was the task assigned by Congress to the Federal courts, was to construe these collective bargaining agreements.

There’s no construction of a collective bargaining agreement involved in this case.

The–

William H. Rehnquist:

But if you can’t have an action for a declaratory judgment, which you certainly are maintaining in light of the statute, and you can’t have an action for construction of the contract, what sort of action for violation of contract can you have under section 301?

Timothy B. Dyk:

–Well, Mr. Chief Justice, we agree that you can have an action to construe the contract for violation of the contract that requires a construction of the contract.

What we’re suggesting is that somehow, if this Court went so far as to say that a violation encompassed anything relating to the contract, a position which you seem to have rejected in the Franchise Tax Board case, we’re suggesting that if you went that far and said, oh, yes, this fits within the suits for violation of contract, you should still say it’s within the primary jurisdiction of the board.

Stephen G. Breyer:

I understand.

Do you know, is there any authority… it seemed to me there ought to be fairly clear whether you could or couldn’t do this, but in suits that are, let’s say, arising under suits, a person might have a State law defense, and is there any reason that the person with a State law defense cannot get a declaratory judgment action on… where he’s claiming that I’m being threatened by a Federal suit and if the person brings that Federal suit I have a perfectly good defense and he wants it litigated in a declaratory judgment action?

Timothy B. Dyk:

There’s a dispute about a Federal law–

Antonin Scalia:

Oh, an antitrust case.

Timothy B. Dyk:

–Yes.

Stephen G. Breyer:

Some private person says, I’m going to bring an antitrust case against you, and the defendant says, look, I have a piece of paper here.

You promised not to.

It’s a State law contract between us.

I would have thought it would be settled.

I would have thought you could have done it.

You could go into a declaratory… in court and say I want a declaratory action.

A person’s threatening me, but he hasn’t brought it yet, a Federal suit.

I want a declaration that he has no Federal suit–

Timothy B. Dyk:

I–

Stephen G. Breyer:

–for the reason that I have this State law defense.

Timothy B. Dyk:

–I suppose, Justice Breyer, that such a suit would lie.

Stephen G. Breyer:

Yes.

Timothy B. Dyk:

But it depends on the jurisdiction of the Federal courts over the coercive suit that the other party could have brought.

Here, there is no coercive suit that the employer could have brought.

Stephen G. Breyer:

He could have brought a suit claiming that the contract was being violated and if you say, well, he wouldn’t have, that would seem to be a question of whether the declaratory judgment action is ripe or not.

Timothy B. Dyk:

Well–

Stephen G. Breyer:

That would seem a question of whether… I mean, yes, of course you’re right, if there’s no threat he can’t bring the declaratory judgment action.

Timothy B. Dyk:

–Well, I think ripeness and the question of whether there’s been a violation or imminently threatened violation are very similar questions, and–

Stephen G. Breyer:

Yes, exactly, so if there’s no imminently threatened violation, you can’t be ripe.

That isn’t the question before us.

Timothy B. Dyk:

–But that’s not… that’s not the issue here.

There is no–

Stephen G. Breyer:

That’s right.

Timothy B. Dyk:

–imminently threatened violation.

Indeed, the union did not say that if it got this declaration that it would strike.

It said it wanted to use this declaration with respect to the contract being invalid, the unfair labor practice issue, in the course of negotiations.

This was not a situation in which the union came in and threatened to strike.

There could have been no coercive action here by the employer, and we simply suggest that under the Declaratory Judgment Act there simply can’t be a declaratory action, either, and that to allow this would be to allow unions and employers to bring all sorts of unfair labor practice charges in the courts, where they don’t belong, instead of the board, where Congress said they should be.

Anthony M. Kennedy:

Well, suppose the union said, we are in imminent danger of the employer enforcing this contract against us because we’re going to take a specific action.

We’re going to strike.

And we want this contract declared void because it was procured by fraud.

Timothy B. Dyk:

Well, under some circumstances probably a declaratory judgment like that could be brought.

There are questions about an employer’s ability to sue to enjoin a threatened strike.

I believe the lower courts are divided about the standards there.

Anthony M. Kennedy:

Well, they just want a declaration of contract invalidity.

Would that be violation of the contract?

I thought it was your position that that’s not a violation of the contract, that’s renouncing the contract, and that’s different than a violation of the contract.

Timothy B. Dyk:

No, Justice Kennedy.

We agree that an anticipatory repudiation of the contract under standard contract law is a violation of the contract, that if there weren’t anticipatory repudiation, that you could bring a lawsuit in Federal court under section 301.

Timothy B. Dyk:

The Dowd Box case, the facts of the Dowd Box case seem to be similar to that.

Mr. Chief Justice, unless there are further questions, I’d like to reserve the balance.

William H. Rehnquist:

Very well, Mr. Dyk.

Timothy B. Dyk:

Thank you.

William H. Rehnquist:

Mr. Yokich, we’ll hear from you.

Perhaps, Mr. Yokich, you could tell us what your view is of possible mootness in this case.

Stephen A. Yokich:

Our view of possible mootness is that there is a fair question of mootness in this case because the contract has expired, but that this is a situation that is a labor case, the labor cases tend to resolve themselves quickly and that therefore it’s a situation that’s capable of repetition, evading review.

In that respect, we think–

Sandra Day O’Connor:

Well, but you wouldn’t anticipate fraud in the future.

I mean, it just doesn’t lend itself to that analysis, does it?

Stephen A. Yokich:

–Well, we hope that Textron would not fool this Local twice, but we do think that, given the fact that we have several thousand collective bargaining agreements and almost a dozen with Textron, that it could come up again, and that this is a case very similar to the Burlington Northern case, where there was a strike that was resolved by an emergency… a presidential emergency board.

The Court held in that case that that was a situation capable of repetition, even though the parties were thereafter bound to a certain term, and even though the parties might not ever have that situation–

William H. Rehnquist:

I suppose what you say is capable of repetition is a claim that there’s been a violation of a contract, whether that qualifies.

It wouldn’t necessarily have to be the same fraud situation.

Stephen A. Yokich:

–But… well, that is true also, Mr. Chief Justice.

As we indicate in our brief, these contract formation issues come in many different forms.

You could have a situation where there was no meeting of the minds, where there wasn’t offer and acceptance, all of those types of situations could be repeated also, and bring this case back before the courts and in such a time frame as to make it impossible for this Court to resolve the issue.

Antonin Scalia:

Mr. Yokich, do I have to struggle with that?

Why isn’t the fact that there are benefits under this contract that must continue to be provided after the term of the contract has ended, why–

Stephen A. Yokich:

Well, I think that’s a fair argument and–

Antonin Scalia:

–I know it’s an argument.

[Laughter]

Why isn’t it right?

Stephen A. Yokich:

–Well, I–

Antonin Scalia:

What’s the argument on the other side?

Let’s put it that way.

Stephen A. Yokich:

–I have–

Antonin Scalia:

Somebody ought to give us the argument on the other side, if there is any.

Stephen A. Yokich:

–Well, you’ll have to find somebody different than me to do it.

That’s–

Antonin Scalia:

But you think it’s a good argument.

Stephen A. Yokich:

–I think it’s a decent argument.

Antonin Scalia:

Mr. Dyk–

–Is it a correct argument?

I don’t care whether it’s obscene or not.

[Laughter]

Stephen A. Yokich:

Yes.

As I say, there are lots of implications to it, because it turns on the nature of the right in this particular contract what the bargaining history is, et cetera, et cetera, all of the factual questions that you have to answer in a case like Litton, and that’s why I’m not prepared at this time to say absolutely positively this contract’s created a vested right.

David H. Souter:

Well, Mr. Dyk’s point was that you got a damage action going down below anyway, and it’s the damage action which would be affected by this and therefore that’s why there’s no mootness here.

Is that correct?

Stephen A. Yokich:

Well, that’s what we indicate in footnote 4 of our brief and–

David H. Souter:

You agree.

Stephen A. Yokich:

–that is why this case as a whole is not moot.

David H. Souter:

You agree.

Stephen A. Yokich:

Yes.

Ruth Bader Ginsburg:

So why do you bother with the capable of repetition yet evasive of review if you’ve got a concrete thing like damages that you say survive?

Stephen A. Yokich:

I… what I’m… the reason why I bother with it is just that I’m trying to cover all the bases.

You could draw a distinction between–

Ruth Bader Ginsburg:

So you wouldn’t put that as the number 1 reason that it isn’t moot.

Stephen A. Yokich:

–No.

My number 1 reason that the case is not moot is set out in footnote 4 of our brief, which is that there’s this live damage claim.

Ruth Bader Ginsburg:

What about something… you said that the determination here will inevitably impact on the bargaining that’s currently going on, that you need to know whether the old contract was no good, and you said that will surely affect how it’s bargaining now, and I thought, well, how?

How will this information about the old contract have an impact on the bargaining for the new contract?

Stephen A. Yokich:

Well, that’s an argument that I would rank after repetition evading review, and I would just that when you bargain a new contract you typically bargain from the baseline of the old contract, and if there’s a provision in that contract that for some reason doesn’t apply because of fraud, you can make an argument that you would have less moral ability or more moral ability at the bargaining table to say we don’t have to bargain about that, or we should bargain from zero instead of the old language.

Ruth Bader Ginsburg:

But here you’re saying the whole contract is no good, so I just don’t understand how that declaration would affect bargaining of a new contract.

Stephen A. Yokich:

I think there is a potential impact of that declaration.

I think Mr. Dyk’s argument about the vested rights, I think the point about the fraud, and I think about the capable of repetition evading review are all stronger arguments.

Since Lincoln Mills v…. since Textile Workers v. Lincoln Mills this Court has held that section 301 gives the responsibility to the Federal courts to fashion a body of law for the enforcement of collective bargaining agreements.

In the Lincoln Mills case, the Court rejected a literal reading of the statute.

It rejected a reading that the statute was jurisdictional and instead found that the statute created the power to develop a whole body of cases with respect to the enforcement of contracts.

Stephen A. Yokich:

In addition in Lincoln Mills, the Court held that the statute gave the Federal courts a wide choice of remedies, remedies such as specific performance in that specific case and, in addition to that, remedies such as declaratory judgments.

In Lincoln Mills, for example, specific performance was a remedy that you can’t find in the language of section 301 and is one that’s really been traditionally disfavored in terms of agreements to arbitrate and disfavored in terms of employment law.

William H. Rehnquist:

Are you saying that Lincoln Mills broadened the jurisdictional grant beyond the language that Congress had chosen?

Stephen A. Yokich:

I’m not saying–

William H. Rehnquist:

That’s what we’re talking about here.

Stephen A. Yokich:

–Well, I would say that… well, Lincoln Mills’ reading of the jurisdictional grant was a fair one based upon that language.

William H. Rehnquist:

Well, are you… what… beyond suits for violation of contracts, which is the statutory language, do you think Lincoln Mills said other things are included in that jurisdictional grant, too?

I wouldn’t have read it that way.

Stephen A. Yokich:

Well, I think Lincoln Mills said that the phrase, for violation of contracts, is a broad enough phrase so that the courts have the responsibility to develop a complete body of law with respect to the enforcement of collective bargaining agreements.

David H. Souter:

Well, with respect to the provision of remedies for a violation.

Yes.

That’s what was involved in Lincoln Mills.

The question was, are you going to provide this equitable remedy for a violation?

How does Lincoln Mills take you beyond the for violation language?

Stephen A. Yokich:

Well, I think what Lincoln Mills says is that when we have issues that deal with what the rights and the duties are created by the collective bargaining agreement, that the Federal courts are authorized to adjudicate those rights and duties.

I think the phrase, for violation of, can argu… should be read as giving the Federal courts general jurisdiction over the law of collective bargaining ag reements–

William H. Rehnquist:

How would you rate that, as a decent argument, or–

[Laughter]

–a good argument?

Stephen A. Yokich:

–Well, I’d rank it way up there on top.

Antonin Scalia:

PG?

PG, General, or–

[Laughter]

Stephen A. Yokich:

And I suppose that the… what it comes down to on our view in terms of looking at the language of the statute that’s involved is what you use the… what the word for, the preposition involves.

We think the word for is susceptible of a broad enough meaning, that being concerning or related to, which you can find in the dictionary, in the definition for for, that the Court has considerable latitude to resolve issues that go to the heart of the enforcement of a collective bargaining agreement.

Ruth Bader Ginsburg:

Considering the Court’s latitude, suppose you’re right that theoretically there is a 301 suit here.

Suppose a district judge then said, well, this union went to the board first, and I have to apply board law, so I’m going to say, prior proceeding pending, and wait until the board acts.

Would that be a proper response to your claim?

Stephen A. Yokich:

I think it would be a proper response to some claims.

If the complaint was wholly based upon an alleged unfair labor practice I think that might be a proper response.

Stephen A. Yokich:

I don’t think that’s the case in our situation, because I think if you compare the theory of our case versus the board’s theory of their complaint, they’re different cases.

Our case goes to the entire contract and is based upon the common law of fraud.

The board’s case is really a little bit different than that.

The board argues that it was a mandatory subject and that the parties did not bargain in good faith over that mandatory subject, and that the subcontracted clause that would let the board… that would let the employer proceed on that subject was procured by fraud, and so the fraud really comes in, in the board’s theory at least, in the tail end of the case as opposed to being the heart of the refusal-to-bargain complaint.

John Paul Stevens:

May I just interrupt you with a question there?

Do you agree with your opponent that, if it is not a mandatory subject of bargaining, but there was nevertheless active fraud in the negotiation on the nonmandatory issue, that the board could remedy that as a failure to bargain in good faith?

Stephen A. Yokich:

It’s hard for me to see that, Your Honor.

If it’s a permissive subject–

John Paul Stevens:

Let’s assume it’s permissive, and that there’s active fraud in misleading the union and the board would be powerless to remedy that.

That’s your view.

Stephen A. Yokich:

–If it’s a permissive subject their duty is to supply information–

John Paul Stevens:

I know there’s no duty to disclose.

I’m assuming there’s no duty to disclose, but there nevertheless is an active misrepresentation.

Stephen A. Yokich:

–I don’t know of any board cases that give–

John Paul Stevens:

He said there were a lot of them.

That’s what puzzles me.

Stephen A. Yokich:

–I don’t know of any board cases that give relief in that situation, and–

John Paul Stevens:

Are there any board cases saying they have no power to give relief in such situation?

Stephen A. Yokich:

–Well, the closest the board has… the relief that we seek in this case is to be able to declare the entire contract unenforceable.

John Paul Stevens:

I understand.

Stephen A. Yokich:

And I don’t know of any board cases that deal with that exact situation, and that say that you can award that kind of relief.

John Paul Stevens:

And you think, in representing the union, the board would not have the power to declare a contract void on the theory that the… there was no bargaining in good faith because of fraud such as I’ve described?

Stephen A. Yokich:

Well, representing the union, the best I could do is predict that that would be a very tough case before the board.

There aren’t any cases that I could supply to the board to support that.

Ruth Bader Ginsburg:

The petitioner’s brief makes that statement that the NLRB could, as a remedy for an unfair labor practice, invalidate the contract.

Stephen A. Yokich:

Well, the cases the petitioner’s brief relies on, first of all they all deal with mandatory subjects where the employer had an obligation to bargain about them.

Second, if you look at the most recent case, the Waymouth case, it speaks of a particular commitment that was made in a contract that has… that was held not to be binding upon the union.

It was a case where the union said, if you move to another site this contract’s not going to cover us representing the people at the other site.

The employer misled the union about where it was moving to, and the board said, well, you can’t enforce that specific term of the contract, and again that’s very much consistent with the board’s theory in this case, which goes to a specific term of the contract rather than the enforceability of the entire agreement.

Anthony M. Kennedy:

You read the statute as if it were to say, suits respecting contracts.

Stephen A. Yokich:

I… not only do I read the statute that way, but I think that that is the thrust of the board’s precedent from Lincoln Mills onwards.

William H. Rehnquist:

What authority does the board have to construe a grant of jurisdiction of the Federal courts?

Stephen A. Yokich:

The NLRB?

William H. Rehnquist:

Yes.

Stephen A. Yokich:

I think it has very little authority to construe the grant of jurisdiction for–

William H. Rehnquist:

So, then, why is it important that the board may have construed it that way?

Stephen A. Yokich:

–If I said that–

Antonin Scalia:

You misspoke.

I think you meant the courts–

–Oh.

Stephen A. Yokich:

–That’s correct.

I misspoke.

William H. Rehnquist:

You mean this Court, when you–

Stephen A. Yokich:

I think that the entire thrust of this Court’s cases is to give section 301 a broad reading.

William H. Rehnquist:

–Well, I’ve just been rereading Textile Workers and I must say I don’t agree with your characterization of that.

It seems to me the Court said, jurisdiction is jurisdiction, and they went on to say that with section (b) there was a grant of Federal… an additional grant to Federal courts to develop a case law, just as you say.

Stephen A. Yokich:

Mm-hmm.

William H. Rehnquist:

But I don’t see anything expansive in there about the jurisdictional ground.

Stephen A. Yokich:

Well–

William H. Rehnquist:

Maybe you could refer me to specific language.

Stephen A. Yokich:

–The… I think that the expansive nature of the jurisdictional grant comes as you develop the other cases that deal with section 301.

William H. Rehnquist:

That would be strange, really, if you have a limited jurisdictional grant and then construed to authorize development of substantive law in cases within that jurisdictional grant, and then the substantive law doctrines enlarged the jurisdictional grant.

Stephen A. Yokich:

I’m not trying to argue that, Mr. Chief Justice.

What I’m trying to say is that I think that the courts in Lincoln Mills read the language, did not apply it literally to just give them jurisdiction, applied… read the language to give them the authority to develop a whole body of contract law, and our argument is that our claim in this case that a part of the inducement, like other contract formation claims, fits within the whole body of contract law.

Anthony M. Kennedy:

Are there cases in the arbitration area where the contract says suits for violation of this agreement shall be arbitrated, and then the question is whether or not the agreement is void?

Stephen A. Yokich:

There are arbitration cases where this is put in as a defense to the enforcement of a specific term of the contract.

I’m not aware of any arbitration cases that throw out a whole contract because of a claim of voidance of this kind.

Anthony M. Kennedy:

Well, my question was whether or not there are cases going to the scope of the arbitrator’s authority.

One party says the contract says suits for violation of this agreement are arbitrated, and the issue is whether or not there’s fraud, and the party who’s trying to defend says, oh, well, the arbitrator can’t consider this because this goes to the whole contract and this is not a violation of the contract.

Stephen A. Yokich:

There are… let me divide that into two parts.

Stephen A. Yokich:

There are Federal court cases that deal with enforcements of agreements to arbitrate that deal with the issue of, can that agreement be enforced due to the fraud, and quite honestly there’s a mish-mash of the cases.

They go different ways.

There are cases, for example, in the Fifth Circuit that say that if an issue of fraud is raised, then that’s something the court has to determine before it can order the case to arbitration and that, of course, is, one thing that would happen were this case to go back down is that the district court would have to consider the company’s additional defense that this case has to be arbitrated.

That was reserved in the court of appeals decision and is something that would be currently before the district court.

Stephen G. Breyer:

What do you say about what I take it is the declaratory judgment theory?

Suppose Mr. Dyk were to say, yes, of course, you can bring that kind of claim as a declaratory judgment to get the contract declared void because that’s a possible defense that you’d have if the employer were to sue you, but that isn’t the theory that was argued below and anyway, if it were, you’d lose because you have to have some kind of threat that the employer really would sue you, and here there was none.

Stephen A. Yokich:

Well, I think that your reaction to Mr. Dyk’s argument that this is really a ripeness argument is the correct way to analyze that problem, and I–

Stephen G. Breyer:

And then he said you’d lose, though, on that.

Stephen A. Yokich:

–And I don’t think I’d lose on the ripeness point, and that’s for two reasons.

First of all, I think that all of the… that a decision on what we plead can be determined by historical facts.

Either the fraud occurred or it didn’t.

It depends on who said what to whom when, and because there is no other event that really has to happen to determine whether the fraud occurred, I don’t… I think this is a situation that is eminently ripe for judicial resolution.

Ruth Bader Ginsburg:

But that’s not how it goes with declaratory judgments.

The question is, how imminent is it that you are going to be hurt by what happened?

It’s not, does anything more have to happen.

Stephen A. Yokich:

I think that that goes to the issue of whether a judgment would fix the legal rights of the parties, and I think that a judgment would fix the legal rights of the parties, because–

Ruth Bader Ginsburg:

But that doesn’t sound… I mean, you can think of any kind of contract.

Think of a landlord and tenant.

They want to settle what the contract means, and so they bring this suit and the court will tell them and they can go on.

Declaratory… there has to be, especially in the Federal courts, a case or controversy, so you can’t just have this iffy, something happened then, and it may ripen into an adversary concept later.

Stephen A. Yokich:

–Well, I think that the parties in this case are in an adversary contest.

We say there was fraud, they say there wasn’t any fraud.

We say the contract’s not enforceable, they say the contract is enforceable, and I think the fact that we didn’t write them a letter before we filed the lawsuit, that we let the lawsuit be our indication that we thought the contract could be rescinded, I think that’s sufficient to put us in a posture where we are adverse and where the decree could be meaningful.

If the decree did issue, if the court were to hold this contract could be rescinded, then what would happen was that the parties would say, boy, we’d better go back to the bargaining table and try to remedy this problem, and so the decree that the court would issue would give concrete legal guidance to the parties.

Antonin Scalia:

You don’t… you’re not going so far as to contradict, however, the assertion that you have not threatened to violate the contract?

Have you positively threatened to violate the contract?

Stephen A. Yokich:

We… I don’t think I–

Antonin Scalia:

The alleged contract, I suppose I should say.

Stephen A. Yokich:

–Right.

The only place where we have said that we think the contract is void is in the two legal proceedings, in the legal proceeding before the NLRB and in the legal proceeding before the district court.

Stephen A. Yokich:

We’ve not otherwise made that threat.

John Paul Stevens:

I have understood your position to be that you do not need to allege a threatened violation of the contract in order to establish the jurisdiction you seek in this case.

Stephen A. Yokich:

That is our–

John Paul Stevens:

I really think that’s your position.

Stephen A. Yokich:

–We don’t… I don’t think we have to go that far.

John Paul Stevens:

In other words, this case doesn’t turn on an estimate of probabilities of how much likelihood there was of a strike.

You think basically you should just go in cold and say, we want to know whether we’re bound by the contract or not.

Stephen A. Yokich:

On an issue of this nature–

John Paul Stevens:

Yes.

Stephen A. Yokich:

–where it’s solely determined by–

John Paul Stevens:

Set aside the entire contract.

Stephen A. Yokich:

–historical fact, I would say yes.

William H. Rehnquist:

Well, what if you have a landlordtenant dispute, and say a Maryland lawyer is renting an apartment from a Virginia lawyer, and they’ve signed a lease, and right after they sign the lease the Virginia lawyer sues the Maryland lawyer in Federal district court and says, we just want to… I want to know whether this is a binding contract or not, and the Maryland lawyer says, I do, too, and we’ll just avoid future disputes.

Is that justiciable?

Stephen A. Yokich:

I don’t think it’s justiciable absent some claim that the contract was not binding and absent all of the facts necessary for a court determination on that claim existing, and so just a naked claim, we want to know whether it’s enforceable, is not enough.

If there was a claim that there was no meeting of the minds, or that the figure in the contract for rent was the wrong figure, I think that is justiciable.

John Paul Stevens:

Yes, but the distinction here is, I don’t think there’s any doubt that if the statute clearly covered your case there would be Article III jurisdiction.

Having an interest in knowing whether there’s a good contract is sufficient to give you standing.

The question is whether it comes within the scope of this particular statute.

Stephen A. Yokich:

I think that’s right, and that’s why I think it’s important that when you construe the word for, that you construe it as meaning concerning, and that when you look at what are the issues the Federal courts have looked at with respect to concerning, you see the whole–

John Paul Stevens:

It seems to me if you construe the word for as meaning concerning that doesn’t get over the principal hurdle as to whether there’s a violation.

Stephen A. Yokich:

–Well, I… what we’re asking for is a declaration that the contract’s not enforceable, that if we commit a breach, that it’s not a violation, and I would argue to the Court that we’ve done all we need to do to indicate to the other side that we think that there’s a substantial issue that we disagree with them on with respect to whether or not we can violate the contract.

William H. Rehnquist:

You agree, don’t you, Mr. Yokich, that the Declaratory Judgment Act doesn’t expand any jurisdiction.

It just applies where there is jurisdiction.

Stephen A. Yokich:

That’s correct, Your Honor, and it’s a procedural device that let’s a person who expects that they will be a defendant get into court first to get a declaration so that they don’t have to risk the consequences of a breach.

In this type of situation, I think where you have very large consequences from a breach, where you have an impact on the employer if there’s a strike, where you have an impact on the union, and where you could have very, very substantial impacts on the membership of the union, it’s entirely appropriate to not put the union to the point where it has to say, this is void or we’re going on strike tomorrow.

William H. Rehnquist:

Do you think you could have gone into State court?

Stephen A. Yokich:

No.

William H. Rehnquist:

Why not?

Stephen A. Yokich:

Because our view of section 301 is that it creates a complete jurisprudence of section 301.

William H. Rehnquist:

Well, what do you do with the Dowd Box case?

Stephen A. Yokich:

Well, I… let me step back for a second.

We could have gone into State court, but it would have been under section 301 and it would have been limited to whatever this Court would hold–

William H. Rehnquist:

Well, why would it have been under section 301?

Stephen A. Yokich:

–Excuse me?

William H. Rehnquist:

I say, why would it have been 301> [“] when section 301 is a grant of jurisdiction for Federal courts?

Stephen A. Yokich:

Well, what the Court held in AVCO was that a State court breach of contract claim was something that arose under section 301 and was therefore removable, and as a consequence, if you go into State court on a breach of contract claim it’s going to be determined by the same standards that this Court uses under section 301.

William H. Rehnquist:

Well, but if it isn’t covered by section 301, it’s not removable, I would suppose.

Stephen A. Yokich:

Well, and I think that reading Dowd Box and AVCO together means that if it relates to a collective bargaining agreement, that you use the Federal law under section 301.

You can use it in either Federal or State court, but if one party wants to remove, then you’re in Federal court.

William H. Rehnquist:

Even though there’s no 301 jurisdiction?

Stephen A. Yokich:

Well, in the case… you see, and I guess that–

William H. Rehnquist:

That would have to rank as one of–

Stephen A. Yokich:

–that goes to the point that they’re making in this case.

William H. Rehnquist:

–One of the less plausible arguments, it seems to me.

Of course, you’re going to have to discuss sooner or later whether one reason you couldn’t go into State court would be because of Garmon preemption, which at least they say applies here, too.

Stephen A. Yokich:

Well, our position on that is that their analysis of section 301 doesn’t really do a very good job of explaining how that would work, and that’s because presumably if you went into State court you’d be governed by State rules of procedure, and you could have a State Declaratory Judgment Act that was broader or narrower than the Federal Declaratory Judgment Act in terms of what types of violations you could bring before the court.

And if that’s the case, if section 301 is less than complete in terms of the jurisdiction it gives the courts over issues of contract enforceability, you have a situation where you could have State court actions that are entirely undermining the principle of uniformity under section 301.

Now, if… and you know, their argument doesn’t account for many different things.

It doesn’t account for what happens if it’s a permissive subject and the board concededly has no authority whatsoever, Garmon preemption couldn’t apply in that case, and it also doesn’t account for the fact that there are some contract formation issues that might not get you in front of the board.

John Paul Stevens:

Well, maybe Congress wasn’t perfect.

Garmon talks about arguably, you know, and from what you both said to me, I think it’s at least arguable the board could fashion a remedy for fraud in the inducement of a contract on a permissive subject of bargaining.

Stephen A. Yokich:

Well, and our position on that is that so long as the court can find section 301 jurisdiction we would continue to live in this world where we have concurrent remedies.

Ruth Bader Ginsburg:

So your argument does lead to the end result that there would be many, many more cases of overlap of board jurisdiction and court jurisdiction than has been thought up to now.

Stephen A. Yokich:

I don’t think so, Your Honor, and that’s because we’ve had declaratory judgments in the Federal courts in labor cases for over… for almost 40 years now.

The first reported case that I can find is the Black and Clawson case in 1962, and–

Ruth Bader Ginsburg:

I’m not talking about declaratory judgment cases.

I’m talking about parallel proceedings.

I mean, you made a complaint to the regional council first, right?

Stephen A. Yokich:

–To the regional director, yes.

Ruth Bader Ginsburg:

One whole year, so couldn’t what you have done be replicated by many other unions in this situation, that is, go to the board, they’re moving too slowly, come to court?

Stephen A. Yokich:

Well, if you look at the circuits where the courts have acknowledged that lawsuits like this one can go forward, I don’t think you can find any evidence that there are dozens and dozens and dozens of cases where the parties are exercising both–

Ruth Bader Ginsburg:

How many cases are there like this one that said the union, on what would be a defense, can come in and get a 301–

Stephen A. Yokich:

–Well, the Tenth in McNalley, the Ninth in Rozay’s and in Wilson, the First has hinted at that in a recent case, but the Seventh would almost certainly say it.

The Third would, and the Second Circuit would also say it, too, under Black and Clawson and Kozera and Messenger, which means I think in the majority of places we already have the potential that they’re talking about, and it’s hard to identify a great number of cases going into the court that deal with these types of issues.

Stephen G. Breyer:

–Why wouldn’t the employers do the same, though?

If… why hasn’t it happened whenever an employer faces a weak union that isn’t going to strike, it sues to have the whole collective bargaining contract set aside as invalid?

Stephen A. Yokich:

Well–

Stephen G. Breyer:

And they had all these things run right into Federal court, and they’re deciding the validity of all the collective bargaining agreements?

Stephen A. Yokich:

–Well, again, in terms of the affirmative… in terms of employers doing this I think the same analysis applies, because I think we’ve had concurrent jurisdiction over these types of contract formation issues for many years in many places, and we haven’t seen this.

I guess–

Stephen G. Breyer:

That isn’t something that bothers you, or the board–

Stephen A. Yokich:

–Well, it doesn’t bother me in this case.

Stephen G. Breyer:

–No… well… what… as a labor lawyer–

Stephen A. Yokich:

It might bother me in Mack Trucks, but–

Stephen G. Breyer:

–does it bother you that if you win in this case I guess the employers would have a perfectly valid legal right to challenge whatever collective bargaining agreement they felt was invalid as a matter of contract law?

Stephen A. Yokich:

–Well, I think that because–

Stephen G. Breyer:

Then you go into the court, not the board.

Stephen A. Yokich:

–in most places that’s already possible.

We’ve accepted the, sort of the run of the courts in that, and as a consequence we want to establish the proposition that it can be used affirmatively as well, and that is what we’re trying to do here.

I think the best answer to this argument is in the Third Circuit where the decision in Mack Trucks came down 10 years ago, where it’s a decision that’s pretty closely on point and correctly decided, and where you really don’t see a lot of these cases arising.

One case came up recently called the Beverly case, and the Third Circuit didn’t have any problem in saying, in that case, because all the–

William H. Rehnquist:

Thank you, Mr. Yokich.

Your time has expired.

Mr. Dyk, you have 3 minutes remaining.

Timothy B. Dyk:

Just briefly, Mr. Chief Justice, if you look at the complaint that was filed in this case, which is pages 16 to 19 of the joint appendix, and particularly to paragraphs 5 through 10, which are the operative paragraphs, you can see quite clearly that the theory of this complaint is a failure to supply information in response to the union’s request.

This is at the heart of the board’s expertise and the board’s jurisdiction, determining when there is an obligation on the part of the employer to supply information to the union.

The union has admitted in its brief that board law must apply to this proceeding, so we suggest that in terms of the substantive rules, there’s an exact parallel here between the complaint theory and the board theory, and Justice Stevens, I don’t know of a lot of cases where the board has addressed misrepresentations in the context of permissive bargaining, but there’s no reason as a matter of theory that that shouldn’t be the case.

And if one looks at the brief filed by the United States here, the United States does not suggest that there’s any gap in the jurisdiction of the board with respect to this particular case.

They make very clear that the board can invalidate contracts, make employees whole… there’s an absolute identity of the theories that can be brought before the board and the relief that can be gotten from the board, and the board was set up by Congress to determine what relief should be granted under these circumstances.

Timothy B. Dyk:

Sometimes it will be invalidation of the whole contract or, as here, a part of the contract, and it’s that kind of discretion, that kind of expertise which the board has and the courts don’t have and is a primary reason why this Court should not permit the Federal courts to, in essence, adjudicate unfair labor practices that otherwise would come before the board.

Antonin Scalia:

Can the board award damages, which is one of the things they sought here?

Timothy B. Dyk:

Oh, yes.

In fact, the board settlement awarded back pay damages and the United States in its brief acknowledged that the board can award these kinds of damages.

Thank you.

William H. Rehnquist:

Thank you, Mr. Dyk.

The case is submitted.