Local 783, Allied Industrial Workers of America, Aflcio v. General Electric Company

against activity the Gov criminal tain Gov prosecutable ernment 783, ALLIED INDUSTRIAL LOCAL including of Section ernment, violations AMERICA, AFL- OF WORKERS abroad, CIO, Plaintiff-Appellant, but committed 641, could be of defects prosecution avoided because Presumptively, provision. venue COMPANY, GENERAL ELECTRIC provision venue Congress amended the Defendant-Appellee. among pro others, of purpose, with the No. 72-1260. prosecution of viding forum Appeals, United States Court cognizable already which were offenses Sixth Circuit. courts.21 jurisdiction of district Jan. § 18 U.S.C. jurisdic court presupposes district extraterrito committed of offenses tion history indicates legislative rially. Its the of presupposition included here the section fenses described Thus, that Con inference

consider. gress ex to have Section intended readily application

traterritorial

made. clearly would be To otherwise conclude imag- It is not reasonable

erroneous. intended, Congress Section ine that type punish of offense commit-

against the United States unpun- domestically to leave it but

ted Section committed abroad.

ished when susceptible to that construc-

641 is not prohibits which ob- conduct

tion. govern- the functions structive is not locus of the conduct

ment. The sought by enact- end relevant gov- operation of ment. effective cannot condone the hiatus

ernment contrary construction

the law only reasonable con- cause. pro- struction of 641 is that Section government property hibits theft located.

wherever therefore that when a hold country,

citizen of this while without jurisdiction

territorial the United States, violates 18 U.S.C. he § resulting prosecu

amenable criminal

tion in United States District Courts. charges

He is likewise answerable to

conspiring to violate that section under

similar circumstances. appellants’ convictions are af-

firmed. seq. 660 et See: U.S.C.C.A.N. agreements

vious Union and between the clause, since 1945. That XVI, present Article Section 5 following: agreement, provides the farming or let- “There shall be no ting machinery or out or transfer curtailing purpose of work for the reducing plant.” employment in the began Company On March 1970 the equipment its a transfer from Owens- Singa- plant in boro to its new facilities pore. shipments equip- Subsequent Singapore plant ment to the were made throughout periodically 1970 and 1971. Presently, Company producing the at Lovett, & Wible, Kusch Wi- Charles S. Singapore plant pre- tube mounts Owensboro, Ky., plaintiff-appel- ble, for viously made the facilities. at Owensboro lant. original complaint by the The filed Ky., Holbrook, Owensboro, for Morton sought enjoin Company to the Union Wible, defendant-appellee; Ralph W. transferring machinery, equipment from Craig Holbrook, Hager, Sandidge, & Kentucky Owensboro, or work from its Ky., Owensboro, brief. on Singapore any to other loca- facilities CELEBREZZE, McCREE and Before tion the collective bar- violation. Judges. MILLER, Circuit agreement gaining between the Union alleged Company. it was and the While CELEBREZZE, Judge. Circuit Agreement that other sections the Company, the had been breached appeal case involves an from two This in- question around central centered the District Court: determinations of farming-out terpretation clause. preliminary the first from order oper- position It is Union’s granting Appellant permis- machinery or work ation transfer of is a complaint to an and sion file amended clause, prohibited while the the above striking the de- from the amendment Company contends that clause doe's trial; for mand the second equipment to apply to not transfers judgment final the District plant. Electric another General dismissing complaint. the Union’s Court determined The District Allied Industrial The Local 783 of the ambigu- wording Union) clause (the America and Workers of in- parol could Compa- Company (the ous and evidence Electric General meaning. explain bargain- ny) troduced to are a collective prohibi- ing agreement District Court found dated March August 19, of ma- through apply to a transfer tion chinery not to remain in did force agreement to another General or work covered Com- argued by Owensboro, pany’s plant. It the Un- at its Ken- Electric facilities unambig- tucky dispute the claüse is clear and ion that location.1 The alleged Dis- Company’s it error for the and that was violation uous involves the farming-out consider evidence in the of a clause contained trict Court bargaining history parties re- agreement present pre- two all of ‘Company’ provides preamble Agreement : referred as inafter Union Al- Agreement of the International Local and entered into “This is made America, af- Workers of lied Industrial the General Electric between AFL-CIO, operations, hereinafter with the De filiated Tube for its Owensboro ” partment, the ‘Union.’ referred at 316 East with offices located Kentucky, Street, Owensboro, here- Ninth lating prac- grant prior jury trial, to the clause demand for involving timely of work tices other transfers had been made as a matter right, Company. could vacated issuance of a writ of mandamus. What We first our turn attention presented however, here, is a different erred in of whether issue. is contended the Union’s granting on the Union demand for a complaint. for its amended The motion because was within the Court’s discre permission complaint to file an amended deny tion the demand under Rule nine was filed months after some Procedure,2 39(b) of the Rules of Civil eight original complaint was filed and judge properly but because can days date set for trial. The before the granting condition his of a motion complaint amended added a for claim an file Rule wages money damages em- lost 15(a).3 In Black ease that the we noted ployees allegedly laid off who had been of in writs have mandamus been issued operations transfer to because the protect several cases in to the order Singapore. The District struck right by jury of trial but we indicated complaint paragraph the amended might that such not be the case where permit- jury a which demanded trial and the matter was one within the discretion question ted to the Union brief of the Court. 248 F.2d In re 161. jury granted. whether a trial should be (1st Previn, in After determined that volved such a situation and the Court grant jury trial, would not a the Union there determined matter petitioned to this Court issue a writ of to one be settled if case when compel mandamus the District Court appeal judgment. on a came from final denying jury to vacate its order a trial. question presented The whether We declined to issue the writ. The judge trial his had abused discretion Company contends that is not issue granting jury despite a fact trial open now to reconsideration. timely a demand had not been previously We have held that manda made. mus will not be used to an inter review locutory except in order and ex extreme We do not deal here a with ceptional Boyd, judge’s grant cases. Black v. exercise discretion in modified, Cir., ing jury though 6th timely a trial even a de case, de F.2d In the Black 441. mand was not In made. such cases party termined order of the District seeking jury that an heavy a trial bears a Judge right denying petitioner’s of trial in attempting burden to show an abuse

by jury presented exceptional an situa by judge. of discretion v. Noonan appropriate tion in would be Co., (2d which it Cunard Steamship 375 F.2d 69 ruling petition on 1967). review the a for man City McNabb Kansas found that the refusal We Co., damus. Life Insurance 139 F.2d 591 “ 39(b) provides upon Rule . calendar, may . not- . the trial he so amend withstanding party any the failure days of a it at time within 20 it is after jury an party demand a action in may which such served. Otherwise a amend bis might right, a pleading only by demand have been by made of leave of court or writ- upon court its discretion motion party; ten consent of the adverse may jury any order a freely given a trial or nil justice leave shall be requires. party issues.” plead so A shall in re- sponse pleading to an amended within the 15(a) may party remaining response Rule Amendments. A original time pleading l>leading days amend his once as a matter or within 10 after service any responsive course at pleading, time before a period whichever pleading or, pleading may longer, is if is served one be the unless court other- responsive pleading per- to which no wise orders. placed mitted and the action has not been determination, however, 1943). This is whether Our discretion, dispositive permit of this can, The judge issue. his within only remains, jus if the circumstances do not on party his to amend tify permission amend, timely for a refusal of do demand the condition that they warrant jury the amended condition trial stricken given jury that, trial amendment no complaint. think granted? right circumstances, to a trial proper such action guaranteed by the judge Seventh Amendment Parissi would be reasonable. See. “occupies place so Foley, firm a in our his tory jurisprudence seeming grounds, any on other rev’d right to a curtailment 99 L.Ed. 867 then, scrutinized question, the circum should be with utmost is whether Schiedt, care.” such a Dimick 293 U.S. in this ease stances warranted 296, 301, they not. did Un L.Ed. We think condition. (1935).4 discretionary 15(a) with Civil becomes Rules der Rule judge grant only only Procedure, amend could when the has been waived fail complaint by court leave of party. ure to But even when make demand. the adverse consent of written exercising under Rule sought leave of discretion amend Here refusing 39(b) Pro Rules Civil granting leave Federal Court. grant cedure, jury a particular “the court should circum to amend strong in the absence of and com the sound in rests of the case stances contrary.” pelling to Swof judge, reasons Strickler v. of the trial discretion W, Inc., 406, Inc., 409 Growers, ford v. B & 336 F.2d 319 F. Associated Pfister 15(a), (5th 1964), denied, (6th 1963). U.S. Cir. Rule cert. 379 788 Cir. 2d 962, 653, however, provides 13 L.Ed.2d 557 shall 85 that “leave be S.Ct. given justice requires.” freely (1965). Here, however, so there was no reason, justifying any In the of absence right. original waiver of the The com “this mandate is to heeded.” Foman be plaint requested only injunctive relief Davis, 182, 227, 178, v. 371 S.Ct. U.S. 83 by jury and not triable as a matter was 230, Foman, (1962). In 9 L.Ed.2d 222 right. complaint re The amended justify some factors a deni which would quested in additional form of relief al motion of a to amend identified were damages money jury by and was triable delay, faith, preju as undue undue bad right. jury a The demand as matter of opposing party, repeated to the dice fail made in the amended was by previous to cure ure deficiencies timely. therefore, Bereslavsky v. See amendments, futility of amendment. 1947), Kloeb, (6th Cir. 862 any find none of these other cir 156, denied, 816, cert. 68 S.Ct. 332 U.S. cumstances in this which would case Bereslavsky (1947), justified permit v. Caf 92 have a refusal to L.Ed. 393 complaint. fey, (2d cert. amend its 161 F.2d 499 Union erns Procedure Rule 38 Amendment given shall violate. er at a trial right (b) (a) Right any by by Demand. procedure jury a time a statute of the United States restates preserved jury by a demand therefor the Federal Rules Preserved. as after declared Any in this serving any Constitution the commencement demanding party right issue by upon may the Seventh parties in triable of right of Civil the oth- a demand writing or as jury: gov- in- to serve 5(d) parties. be withdrawn without rule days may of the action and ing ^[*] (d) directed party. and to made as herein by jury. after be indorsed constitutes Waiver. a ^[*] the service of demand as to such issue. file A demand it as a waiver ^[*] upon failure of provided the consent of required required later a the last ^[*] Such demand for trial pleading by may than by a by him of plead- party ^[*] Rule by 10 756 denied, 770, 82, entirely L. 332 U.S. 92 a set of circumstances different (1947). Parissi, supra,

Ed. present in those already through had where case been before, As we have noted trial, days amendment sixteen discretion, exercise sound “[i]n defendant, filed was the second granting leave amend can be had insist defendant who was the prejudice conditioned in order avoid begin specified ed that the trial on opposing party.” to the Strickler any im There no indication date. Growers, Inc., Pfister Associated 319 F. proper part on motive 788, (6th 1963). require 2d A filing amendment, that its sole its ment that the specified amendment be filed filing purpose the amendment was party date amend or that the trial. Court noted obtain merely ing portion bear of the additional cost elapsed nine had months opposing party would, proper filing original complaint since the circumstances, be conditions. reasonable set trial. that the had case been Corp., Firchau v. Diamond National reasons, stated For these the Court 1965). F.2d 269 The circum exercising declin discretion may warrant, stances even ing jury on to allow the Union a trial Foley, case in Parissi complaint. its amended the issues of grounds, on rev’d other specifically did not While 99 L.Ed. U.S. exercising it was its discre state the condition that the case continue 15(a),5 tion under have treated Rule court, though be tried to the even order clear that as such because it is amendment raises issues to a triable not have been would otherwise jury. opinion But it is our cir faced with an exercise of discretion. exceptional cumstances indeed must Bereslavsky Kloeb, party forego required before his cert. by jury. constitutional to a trial Accord Ct. 92 L.Ed. 393 policy favoring jury “The federal trials ingly, we find that the circumstances continuing strength,” is of historic and present in case not of ex this were Conner, v. 221, 222, Simler 372 U.S. 83 permit ceptional required nature 609, 610, (1963), S.Ct. 9 L.Ed. 691 and attachment any doubt should be resolved in favor of the condition that issues the new permitting Nice v. Chesa trial. jury.6 tried not be to a peake Ry., and Ohio F.Supp. 1167, 305 (W.D.Mich.1969). 1185 See AMF Tubo look to the We now scope, Cunningham, admitting Inc. v. erred in the Court whether (10th 1965). Cir. negotiation Here the amendment and evidence discussions eight days filed was practices interpreting past before sched the con in uled start the trial. That it not was determination to be tract. The first imperative begin regard that on the in made is whether scheduled date is indicated the fact of the is clear and unam clause contract judge biguous meaning. the trial set date for trial in think that its We back two “[tjhere months in order to have the is. The clause states that parties brief the issue whether no . of ma- shall be . . transfer granted. Thus, trial should chinery purpose have for work cur- 5. The course, order of the district Court read: 6. Of an action involves both declines, equitable legal here, “only “The issues, Court exercise of discretion, plaintiff imperative to allow the the most circumstances by jury on the issues of its Amended Com- . can the plaint, being legal said through prior amendment not tendered deter- issues be lost (9) elapsed, during nine until equitable months had Beacon mination claims.” plaintiff all 500, of which Theatres, Westover, time could have U.S. Inc. v. 359 Complaint, 948, amended its 510-511, 957, after case 988 3 L.Ed.2d 79 S.Ct. for was set trial. (1959). SO ORDERED.”

757 Workers, reducing v. employment AFL-CIO Electric in the General tailing or meaning Co., (n. 5) 485, 490 one but plant.” can attach 928, 1964), denied, may cert. 379 U.S. 85 S. not to this sentence. 324, (1964); machinery 341 Anson 13 L.Ed.2d which Ct. any work or transfer Inc., Sons, v. & of em- Hiram Walker purpose reduction has as denied, (7th preamble 350 cert. plant. 100 U. ployment in the 840, 79, agreement L.Ed. 76 100 749 is S. S.Ct. that the states contract rehearing denied, (1955), F.2d 380 Depart- 248 Tube Electric’s General between (7th 1957). operations and its Owensboro ment at persuaded We are the local Union. Supreme said in While the Court anything plant” but that “the refers America United Steelworkers operation of General the Owensboro Manufacturing Co., 363 U.S. American Electric. 1343, 564, 80 4 L.Ed.2d 1403 S.Ct. giv- “special (1960), heed should be held previously haveWe bar- en the context which collective a clause determination whether gaining agreements negotiated,” are 363 ambiguous is a a contract 567, 1343, 1346, 564, 80 S.Ct. U.S. Tennessee Con court decide. based its decision on the fact Mine Work solidated Coal United Co. agreement specifically required arbi- America, ers F.2d Similarly, in tration. United Steelwork- denied, S. 397 U.S. cert. Navi- ers of America v. Warrior & Gulf (1970). Only Ct. 25 L.Ed.2d 256 gation Co., 574, 80 363 U.S. when the court has determined that Court, (1960), in de- L.Ed.2d 1409 ambiguous a construction contract meaning termining the of an arbitration finding necessary. of the clause After a agree- bargaining clause the collective made, ambiguity has been “[e]vidence ment, bargaining held that evidence of surrounding of the circumstances history be used to decide practical construction dispute particular whether arbi- interpreta is admissible to aid in its Rather, relied on the trable. the Court tion.” Tennessee Consolidated Coal Co. language used in the arbitration clause. America, Mine Workers of United say that did the “labor arbi- F.2d cert. trator’s source of law is not confined to 964, 90 L. express provisions of the contract as Ed. is true there is prac- the industrial law—the common generally latitude in admissi broad industry shop tices of the bargaining history bility —is of construe bargain- equally part a of collective agreement. bargaining But collective ing agreement although expressed not meaning ques where clause it,” 574, 582, 1347, 80 clear, is tion is no construction neces not think the Court 1352. We do was sary. 181, In Pekar No. v. Local Union formulating provides rule that for the (6th 1962) we 311 F.2d 628 stated apart use of evidence contract that a contract “must be construed to language itself, though even the mean- give effect intent of the ing Rather, contract is we clear. when it was made and the circumstances stating think Court was existing at the time it was made should such evidence is to used when the be looked to to ascertain intent.” interpretation. in need contract is Pekar, supra, 628, In F.2d 636. Other courts have reached the same con- however, finding case, was a there N.L.R.B. v. clusion. In Gulf Atlantic disputed ambiguous clause was Co., Warehouse in need was of construction. Here decision the Court discussed the finding. no make such See N.L.R.B. in the Steelworkers case: Co., Atlantic Gulf Warehouse 291 F. “Although 1961); 2d International Court there deal- right Electrical, ing arbitrate, Union of Radio with the and Machine law, highly majority we think opinion not favored understand the meaning phrase learn a lesson to from hold that we have that the “for curtailing litigation- reducing purpose lesson is that we this —-that generally unambiguous. employment” the con- take terms meaning finally phrase, and do not tract as written as the well meaning give special them because determination whether there anything way give relationship done causal between the intra- bargaining during company take sessions.” transfer and reduction of the plant, work force at the are Owensboro upon issues to determined retrial. of Electri See also International Union cal, Workers, Radio and Machine AFL- Co.,

CIO v. General Electric F.2d (2d cert. 379 U. S. L.Ed.2d 341 farming-out we find that Since ambig- not

clause clear on its face and uous, we hold therefore that evidence of BARRAGAN-SANCHEZ, Gudelia bargaining history is not admissible Petitioner, meaning. explain its ROSENBERG, George Direc- K. District The fact the Union tor, Immigration and Naturalization may have waived violations of the farm Service, Respondent. ing-out past pre in the clause No. 71-3037. asserting against vent it from its claim Appeals, States United present possible Whether violation. Ninth Circuit. knowingly waived its Dec. against alleged claim violation re negotiating agreement knowl with edge of the activities of the a factual to be resolved jury, see Local United Shoe Work America, ers of AFL-CIO Brooks Manufacturing Co., Shoe as is the Compa whether the action taken ny reducing employment at its Ow plant ensboro breached the collective

bargaining agreement. judgment of the District Court is

therefore reversed and the case is re-

manded to the District for a by jury conformity opinion with the

of this Court.

McCREE, Judge (concurring). Circuit agree prohibiting

I that the clause ambiguous

transfer work is not inso- proscribes far as transfer to another Accordingly, plant. General Electric negotia-

was error to admit evidence of past practices

tion discussions and to in-

terpret provision. However, I do

Case Details

Case Name: Local 783, Allied Industrial Workers of America, Aflcio v. General Electric Company

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 5, 1973

Citation: 471 F.2d 751

Docket Number: 72-1260

Court Abbreviation: 6th Cir.