William H. Rehnquist: We'll hear argument next in Number 89-322, United Steelworkers of America v. Tharon Rawson. Mr. Cohen?
George H. Cohen: Mr. Chief Justice, and may it please the Court: In this case the United Steelworkers of America negotiated a collective bargaining provision with the Sunshine Mining Company giving the union the right to accompany a state inspector in his state mine inspection, and as well to accompany a company representative, the safety engineer, in periodic tours of the mine. The steelworkers union thereafter exercised that right which was provided by the collective bargaining agreement. The Supreme Court of Idaho ruled that solely by virtue of having exercised that right, the union assumed the affirmative duty under Idaho tort law to exercise due care in inspecting, and made it clear that what it meant by that was that the union had an obligation to detect any safety hazards that could have or should have been detected in the course of a reasonable inspection. The issue presented in this Court is whether the Idaho state tort law is preempted by the Federal duty of fair representation which governs the union in the conduct of its functions in administering and enforcing a collective bargaining agreement. We bring to this Court a case that has gone through summary judgment, extensive discovery and a spectrum of undisputed facts. Insofar as the collective bargaining agreement is concerned, that agreement, as I stated, makes clear that the union has these two particular roles in accompanying the state mine and the company inspector. The contract begins by referring to the fact that the company will continue to assume its responsibility to provide a safe and healthful work place. The company then agrees to provide the union the limited role that I have just described. The contract does not provide that the union has a right on its own to inspect the mine, and the contract does not provide that the union shall be entitled to correct any defects or deficiencies that might be noticed during the course of either of these types of inspections. Indeed, the limited nature of the union's role is reflected in part by the fact that the union, under Federal law, did not have the right to even accompany a Federal inspector during the Federal inspections of the mine, and the company would not permit the union to do so.
William H. Rehnquist: Well, Mr. Cohen, if the provisions of the collective bargaining agreement are clear, although they give the union very little authority, and perhaps the Supreme Court of Idaho has piled on a lot of responsibility commensurate with that authority, I don't know that that goes to the preemption question. The preemption question, I thought, was whether the Court would have to interpret the collective bargaining agreement.
George H. Cohen: Well, with two... there is two aspects of the preemption issue. One would be the question of interpretation, but there is a more threshold proposition, Mr. Chief Justice.
William H. Rehnquist: So you don't rely on the interpretation aspect?
George H. Cohen: Well, parenthetically, as we have argued in our brief, there is no question but that before the question of whether or not the union assumed any duty, because before the union... unless and until the union assumes a duty, there can be no tort liability. The question of whether or not there is any assumption of a duty would have to turn on an interpretation of the collective bargaining agreement. That would go to the question of whether a tort was committed under state law. We have a threshold proposition. The threshold proposition--
William H. Rehnquist: Well, but you... I still don't think you have answered my question. Do you rely on that part of the preemption doctrine, as you describe it, which says you cannot as a state court interpret a collective bargaining agreement?
George H. Cohen: --No. The more precise formulation, Mr. Chief Justice, would be that when you are interpreting it you must apply Federal law, whether you are a state court or a Federal court. Yes, we do rely on that in our supplemental position that under no circumstance could there ever have been a duty found to exist here on the union to inspect. But the... but the basic premise and the focus of our position is that effort by the State of Idaho to impose a tort law obligation on the union, arising out of the, quote, Mr. Chief Justice... however the, anyone wants to frame the actual conduct, the union was engaged in that conduct exclusively because it was the collective bargaining agent. It had obtained a provision in the collective bargaining agreement to permit it to do the accompanying, and it was actually exercising that right to accompany the inspector. Here we were, then--
William H. Rehnquist: Now, what... what of our cases supports this, what you are, is apparently your primary position?
George H. Cohen: --Well, the case that supports our primary position is Vaca v. Sipes, for the basic proposition that insofar as the representational function of processing of grievance and administering the grievance arbitration proceeding is concerned, there is a Federal duty. The Federal duty was designed to accommodate all the competing interests, carefully delimitated what that Federal duty would be, and that Federal duty occupies the field. It is the exclusive duty, insofar as, and I think this is--
William H. Rehnquist: Certainly Vaca doesn't say it is the exclusive duty, does it?
George H. Cohen: --Yes it does. Vaca says insofar as the union is administering the contract through the grievance arbitration proceeding, Federal law governs. And the square holding of Vaca was the Missouri Supreme Court's attempt to apply Missouri law to impose a duty on the union different from the Federal duty of fair representation could not stand, and in fact was held not to be applicable.
Byron R. White: Suppose, Mr. Cohen, the contract here expressly put a... placed a duty on the union, namely that the union did promise to inspect the mine. You would take the same position that, that although there... I suppose there would be a 301 action against the union? But does it also owe a duty of fair representation to carry out that duty correctly?
George H. Cohen: I think I would respond as follows, Justice White. Theoretically, as this Court in fact recognized in I.B.E.W. v. Hechler, theoretically the union could assume by contract duties in excess of what the traditional kind of representational service is. That is at least theoretically possible. I think the Court would understand and appreciate that is a very unlikely circumstance, given the reality of collective bargaining, the union acting for and on behalf of people in that unit, exacting promises and commitments from the employer. It would be a very unusual circumstance to believe that in that process of collective bargaining, the consequence would be that the union would assume a duty which was then enforceable by members of the bargaining unit. However, even were that to take place, we would have to look at that collective bargaining agreement, interpret it to see is this that very unusual circumstance where employer permitted a union to assume that kind of authority, and in fact, the union actually assumed it.
Byron R. White: Well, what about, what about my question now?
George H. Cohen: Your question, as I understood it, was in that--
Byron R. White: Suppose the union undertakes, in the collective bargaining agreement, to inspect the mine?
George H. Cohen: --That would not, obviously, be this case.
Byron R. White: Because that is what this case is. The state court, as I understand it, construed this contract as the union undertaking a duty to inspect.
George H. Cohen: The state--
Byron R. White: So, let's assume that is right. Then what about... what about preemption?
George H. Cohen: --All right, now--
Byron R. White: What would be your primary position then?
George H. Cohen: --Our position would basically be this Court has not addressed that problem. But it would be... it would be... there are circumstances and factors and considerations at work in that kind of a situation that are not at work here. Because let me say--
Byron R. White: Well, why not? Why not? Didn't the--
George H. Cohen: --Because the argument would be, Mr., Justice White, the argument would be, in that kind of a situation the union arguably is displacing the managerial function of inspecting, and the union then would be assuming what would traditionally be an employer role.
Byron R. White: --Do you agree that the Idaho Supreme Court interpreted the collective bargaining contract to put a duty on the union--
George H. Cohen: Absolutely.
Byron R. White: --to inspect?
George H. Cohen: Absolutely.
Byron R. White: Well--
George H. Cohen: But we... but in fact--
Byron R. White: --Now, suppose we accept that?
George H. Cohen: --But, in fact--
Byron R. White: Suppose we accept that? You need to wait until Justice White finishes with his question before you begin your response. Suppose... suppose... suppose he... we accept that construction of the contract? Then what is your primary position?
George H. Cohen: --Accepting the construction of the contract as the findings were made here was that all the union did was accompany. If we accept it... there is no disputed fact as to what the union's conduct was, Justice White. It was accompany. In fact, the state--
Byron R. White: You're just not answering my question.
George H. Cohen: --the state court characterized it as doing more.
Byron R. White: Well, so, if we, suppose we agree with them.
George H. Cohen: If we did more, if we did more our position would be as long as the union was basically performing a representational function, and what they were trying to do was influencing the way the employer carried out its safety and health responsibility, that would continue to be preempted. We do recognize, however--
Byron R. White: It would be preempted because of the duty of fair representation?
George H. Cohen: --Yes, yes.
Byron R. White: Not because it's... it would be a 301 action?
George H. Cohen: It would... it would be preempted because it was essentially a duty of fair representation case. But I am not denying that there is a possibility that a provision could be agreed to that somehow would create some kind of an additional 301 claim that might be enforceable.
Byron R. White: Well, that is your fallback position, isn't it?
George H. Cohen: Well, yes. It's a fallback in this sense. This Court, earlier this term in the Breininger case, where what was involved was a hiring hall, and the union said after all what we are really doing is taking over a managerial function, this Court said well, the reality is you are administering a safety... a provision of a collective bargaining agreement. And insofar as you are doing that, the Federal duty of fair representation governs your conduct, and you must conduct yourself consistent with that Federal duty. Now, the... as I said, the Vaca case directly addressed the question where there was one particular type of representational activity involved, one particular activity, namely, the grievance process. The, our analysis of the Federal law is that that same approach is equally applicable, as long as you have an exclusive bargaining agent functioning, administering or enforcing a provision of a collective bargaining agreement. That is the nature of the conduct that was being sought to be regulated here. No matter how you want to characterize the plaintiffs' theory, the complaint alleged at the beginning, the union undertook to act as an accident prevention representative and to enforce the safety and health articles of the collective bargaining agreement, and the union performed that service negligently. That was the focus in which this case proceeded. It has continued to proceed as the basic thrust of the plaintiffs. Our position is that insofar as that aspect of the union's conduct is concerned, the union has a duty. Now, when this Court and the basic national labor policy reviewed the question of how do you accommodate the interests of individual employees, their bargaining representative, and the company, when you have that kind of conduct taking place. And the line that was drawn, the effort to accommodate all those competing interests, which comes right out of the core of the National Labor Relations Act when a union is conducting its activities, was to say on the one hand the union is going to be the exclusive representative, the representative of everyone in that unit. But with that extraordinary grant of power we have to accommodate the interests of individual employees against such abuses. And the balance that was struck was designed to assure on the one hand employees' rights would be protected, but on the other hand the union would be left in a position that it could be a viable collective bargaining representative and serve the interests of everyone in the bargaining unit. And out of that combination of interests and concerns came the Federal duty of fair representation, a duty which says the union must act fairly to all the people in the unit, that it must exercise its discretion in complete good faith and with honesty of purpose and that it cannot engage in any hostility or discrimination against anyone or treat anyone arbitrarily.
Byron R. White: Excuse me, Mr. Cohen.
George H. Cohen: Yes.
Byron R. White: Is it your position, then, that there is a Federal common law of torts against the union for any... any negligence in its assumed exercise of bargaining activities?
George H. Cohen: Justice Scalia, I wouldn't say it is a Federal common... Federal common law of torts. We would say that by virtue of having this authority and responsibility, that principle, that Federal law principle governs the manner in which the union conducts itself, incidentally a principle in which negligence has no role.
Byron R. White: You, you would say that this Court, that this suit could have been brought in Federal court, then, on a Federal theory that the union, through its actions, assumed the obligation to inspect, and its... its breach of that assumption gives rise to a Federal cause of action?
George H. Cohen: We would say that there is a Federal claim for the breach of the duty of fair representation. That there always is when a union is conducting itself and administering and enforcing a provision of a collective bargaining agreement.
Byron R. White: No, no, no. This hasn't... this is not... it has nothing to do with a collective... let's assume there was nothing in the collective bargaining agreement at all about accompanying mine inspectors or anything else. But, in point of fact, the union got into the habit of going around with the, with the mine inspectors, and indeed... just what the state court said here.
George H. Cohen: I am sure you can appreciate, Justice Scalia, that the union, I know of no instance where a company would have allowed a union--
Byron R. White: Well, I know that, but this... it happens--
George H. Cohen: --to engage in that. But were that to be the case, the union still is functioning as the exclusive bargaining representative.
Antonin Scalia: --And... and there would be a Federal cause of action.
George H. Cohen: And the Federal... it would be a Federal cause of action, but that would be the only cause of action for that kind of conduct, because what the union is trying to do in that circumstance is to influence the manner in which the employer is providing, is satisfying its relationship to that union. Now, in most cases if there was a collective bargaining agreement, obviously that would be the union's purpose, to try to monitor the way the employer was living up to its commitments, and certainly to be in a position to try to influence the employer in the manner in which the employer was carrying out its responsibilities.
William H. Rehnquist: Mr. Cohen, take Justice Scalia's hypothetical a step further, if you will. Supposing that the union officers... you don't need to look at the clock. Suppose that the union officers were on their way to inspect the mine in a union-owned car ran over someone negligently. Now, would there be any question what the plaintiff in that case, the injured person, could sue in the Idaho state courts?
George H. Cohen: Absolutely could sue via common law action. It could, the duty of fair representation would play no role in that kind of a circumstance. And precisely because the duty of fair representation would place no role, we aren't in a unique circumstance--
William H. Rehnquist: So, so if we were to conclude that the duty of fair representation really played no part in Justice Scalia's hypothetical, then that would mean that that... this... that action too would be... could be brought in state court?
George H. Cohen: --Yes, but I want to--
William H. Rehnquist: Your position is contrary, I realize that.
George H. Cohen: --Our position is you have to look to the nature of the conduct in question. Driving an automobile, how the local union preserves its personal property. Those are areas where we have acknowledged in our brief... indeed I don't think it's acknowledgement... are completely outside the parameters of the operation of the Federal duty of fair representation. All common law obligations that any other citizen would owe are owed by the union. But in a sense, Chief Justice, that highlights the contrast from the actual situation presented here, because here we're in that very unique area where the union is functioning as the exclusive agent, as the administrator of the safety and health provision, and as the representative of everyone in that mine, designed to influence the way in which the employer is conducting its--
Anthony M. Kennedy: Suppose that, take it a step further. The contract says explicitly the union shall have no duty to inspect the mine. This is solely the duty of the employer. The union then, on its own, tells the employees we have inspected mine shaft number 12 and find it safe. And they are negligent in that and people are injured. Cause of action there against the union?
George H. Cohen: --Well, the question would be whether or not there was a misrepresentation by the union, and whether it would be reasonable for anyone to rely on that circumstance.
Anthony M. Kennedy: You know what the Idaho tort law is. The Idaho tort law is there, in the situation I put, that there be a cause of action for negligence.
George H. Cohen: I... I still believe--
Anthony M. Kennedy: Is it somehow displaced by Federal law?
George H. Cohen: --In that situation, I think, once again, we are in the area where you have at least, the argument would at least be you're predominantly involved in the union's conducting its exclusive representative status and providing services to individuals. I know that the line can move further along depending on a spectrum of facts and circumstances. Certainly, where a contract's involved we don't have that problem. But I think we would at least have the basis for maintaining the argument that there still is the functioning of the union in its traditional representative status that is at work there. I recognize there could be competing considerations in that regard, but there are no competing considerations here, as we say, because there is no dispute that... the only reason the union was functioning here was because it had obtained a provision in the agreement which gave it the limited right that it had to accompany the inspector.
Anthony M. Kennedy: In my situation, my hypothetical, I want you to stipulate that the union was negligent in what they did. Would there be a Federal cause of action?
George H. Cohen: Well, insofar as a Federal cause of action is concerned, mere negligence or bad judgment does not on the merits make out a claim for a breach of the duty of fair representation. There is a good reason for that, and the reason is the policy concern that you want to give the union a wide range of reasonableness when it is conducting its activities and having to make the judgment that it has to make as the bargaining representative. Should we inspect. How do we inspect. What kind of collective bargaining protections are we going to try to achieve in the contract.
Antonin Scalia: This isn't the duty of fair representation, though. It's a tort arising out of an activity that it was performing in the conduct of its duty of fair... we're not saying that the union has violated its contractual obligations at all. We're... your thesis is if a tort arises out of its either express contractual performance, or out of any other aspect of its trying to make the employer accountable for the relations with the workers, that tort is excluded from state law. It's a separate tort. It's not the duty of fair representation. Now, does that tort exist under Federal law or not?
George H. Cohen: I don't believe it does.
Antonin Scalia: There is just no such tort. All you have is--
George H. Cohen: I am certainly not aware of one that does this, but we are still back to our fundamental proposition. No matter how the court tried to characterize the duty it was trying to place on the union, it's the act or conduct sought to be regulated that is the key consideration. And whether it is a tort under one state law or another, the bottom line is, we believe, that insofar as the union is conducting itself as the exclusive bargaining representative, doing the services to protect people in the unit, then there is no room for state law to apply.
Anthony M. Kennedy: --So in effect you are arguing for a Federal immunity?
George H. Cohen: Not a Federal immunity--
Anthony M. Kennedy: You say that there is only duty of fair representation, and that it doesn't include that, and it's not state law--
George H. Cohen: --Justice Kennedy, the... if the Federal duty of fair representation applies, then there is a legal standard--
Anthony M. Kennedy: --But you're telling us that it doesn't.
George H. Cohen: --In the case that we are concerned with, we have a Federal duty of fair representation that is at work, is the exclusive duty and the governing duty as to our conduct, and the Plaintiffs have abstained proceeding on that basis. They didn't plead any breach of the Federal duty. They didn't, they disclaimed ever relying on it. And after all these years of summary judgment proceeding, it is absolutely clear that that was good judgment because they could not make out a breach of the duty of fair representation. Now, if the Idaho state law decision were to stand, in essence what that court has said is merely by accompanying the inspector they determined that we assumed an affirmative duty to inspect. And here is where the union would be left in those circumstances. Either we would have to in fact achieve the right to inspect, to conduct our own inspections, a right I might add that there is nothing to suggest we would ever achieve from this employer or perhaps any other employer, given the state of this record that they wouldn't even allow us to accompany the Federal inspector. So we would either have to do that so that we could have in fact a meaningful inspection right, or we would have to choose not to participate in circumstances where what the union did was make the following judgment. We are going to have rank and file employees accompany the inspector. We are going to use the union's representative, the rank and file employee status, as a means of communication to allow the miners who are actually on the job, who are facing possible hazards, to notify, to communicate with the union so in fact those concerns could be passed on to the inspector or the company. That was the judgment that the union made as to how it was going to conduct its activities. And to set aside that, to allow the state law to function in these circumstances, would in those circumstances in essence undermine the union's right to have made this judgment, a right which is at the heart of the duty of fair representation and the accommodations that have been made when you have the three parties at work, namely the individual employee, the union and the company. I think I will reserve my remaining time, Chief Justice.
William H. Rehnquist: Very well, Mr. Cohen. Mr. Howard, we'll hear now from you.
Kenneth B. Howard: Mr. Chief Justice, and may it please the Court: This case involves two issues that have been raised by the Petitioner in this case. One is whether or not the Idaho common law is preempted by 301 in this particular instance, and the second is whether or not there is a duty of fair representation, and whether that is the only duty, the sole duty that the union owes under this kind of a circumstance.
Byron R. White: Well, didn't... didn't the Idaho Supreme Court find a duty on the union to inspect?
Kenneth B. Howard: Yes... yes--
Byron R. White: And didn't they base that on the collective bargaining contract, their interpretation of the collective bargaining contract?
Kenneth B. Howard: --Yes and no.
Byron R. White: How do you say it's no?
Kenneth B. Howard: The supreme court in its... it had three opinions on this particular case. If you read all of the opinions there is discussion in those opinions about the collective bargaining agreement. There is no question about that. But after the case was remanded to the Idaho Supreme Court and it reviewed its language in the context of the Hechler decision by this Court, the Idaho Supreme Court clearly said we are not looking to and don't care about what the collective bargaining agreement says. That is not important in establishing whether or not there is a state-based cause of action established--
Byron R. White: Well, I know, where did they find... purport to find the duty to inspect?
Kenneth B. Howard: --The duty to--
Byron R. White: They didn't say that just any collective bargaining agent for miners has a duty to inspect a mine.
Kenneth B. Howard: --No, clearly not.
Byron R. White: Well, then, under state law. So where did they get it?
Kenneth B. Howard: The duty to inspect comes from the undertaking itself. It comes from--
Byron R. White: What undertaking?
Kenneth B. Howard: --The undertaking of going down and inspecting. You look at the conduct, at the actions involved in the inspecting. Had... had the union, under Idaho law, had the union promised in the collective bargaining agreement, for instance, to inspect, and never inspected, there would be no cause of action under Idaho law. Idaho law does not recognize a breach of a contract by failure to do something that you promised to do. There is no such tort--
Antonin Scalia: As I understand it they didn't find a duty to inspect. They found a duty to inspect carefully. That is to say, if you do inspect you have a duty to inspect carefully. But they didn't find a duty to inspect, did they?
Kenneth B. Howard: --Justice Scalia, I believe that they did find a duty to inspect based upon the facts in the record at this point in time. Obviously, here, we have not had a trial on the merits yet. We are addressing this case, even after these 18 years, based upon the status of the record.
Antonin Scalia: Then I really don't understand the case. I thought what the Idaho court was saying was that if you choose to inspect, though you have no duty to, you have to do it carefully. Which is, you know, sort of old tort law. But you are saying that that is not what they said.
Kenneth B. Howard: No.
Antonin Scalia: They said there was a duty to inspect.
Kenneth B. Howard: I believe that they said if we can prove, if the plaintiffs can prove that there was in fact an inspection taking place, that is our obligation, then there is a duty to do it carefully. Yes, there is a duty to do it with reasonable care. That is part of our burden of proof though, is to show the undertaking itself.
William O. Douglas: So... so... well, all right. You have given me two answers. Which one is it, the last one?
Kenneth B. Howard: I am sorry, I don't understand.
William O. Douglas: They did not find a duty to inspect. They simply found that if you inspect you have to do it carefully. Is that an accurate description of what you think they said?
Kenneth B. Howard: That's correct. I believe that that is correct.
Byron R. White: May I ask then, if... if instead of a union we had here a trade association which was interested in improving mine safety throughout its... all the member companies, and they sent a committee along, to go along with the routine inspection by the employer. They had three people just go along, they want to see what the... how they are doing, and they are sloppy. They don't find anything that is in plain sight and they don't report anything. Would they assume a liability under Idaho law to the people who were later injured by an explosion?
Kenneth B. Howard: Justice Stevens, the Idaho law relating to this subject requires certain foundational elements be proved before you can determine whether somebody has established the necessary undertaking. It has to be an undertaking under either 323 or 324--
Byron R. White: Well, I am asking... I think Justice Scalia and I are both trying to find out what the source of the duty is. And I thought your response was the source of the duty is the fact that they did in fact inspect.
Kenneth B. Howard: --That is correct.
Byron R. White: But is that... if that is enough, then in my trade association example they would have the same duty.
Kenneth B. Howard: If the inspection rises to the level necessary to meet the elements of the cause, the state recognized cause of action, yes.
Byron R. White: But what, what elements are there? They are sloppy. I mean, in my hypothesis they have the proof, they have got the consent of the company to go along on whatever the periodic inspection is, and they see a lot of stuff that somebody ought to recognize as being very dangerous, but they don't tell anybody. They figure we're going to write notes about it, and in the future when we write our report we'll say these are dangerous practices, but we don't feel we have any responsibility other than to find out what we can during the course of inspection. Does the very fact that they are making an inspection impose a duty to do anything with the knowledge they gain thereby?
Kenneth B. Howard: To the extent that we have the words of the Idaho Supreme Court, the answer to your question is yes. The elements that were asserted at the time that, and were inferentially but not specifically adopted by the Idaho Supreme Court, was that the elements that are contained in the Restatement of Torts 324A.
Anthony M. Kennedy: I take it that includes some reliance on the part of the injured party?
Kenneth B. Howard: Some reliance on behalf of either the injured party or, if it is 324... or excuse me, 324A, it can be the undertaking that is, an undertaking taken on behalf of someone else for the protection of a third party. There you can have the reliance of either the third party or the person who you undertook the reliance for.
Sandra Day O'Connor: Well, how can you proceed in the tort action in Idaho without establishing or relying upon the collective bargaining agreement provision regarding the union participation in the inspection?
Kenneth B. Howard: Justice O'Connor--
Sandra Day O'Connor: Won't that have to be part of your cause of action? And I assume it will be part of the defense as well, to try to show the reasonableness of any reliance and the extent of any duty.
Kenneth B. Howard: --The duty recognized by the Idaho Supreme Court does not rely at all upon the collective bargaining agreement. Had the collective bargaining agreement laid down certain guidelines--
Sandra Day O'Connor: But you say it did rely on a restatement view of this type of tort action.
Kenneth B. Howard: --That is correct. It... but--
Sandra Day O'Connor: So, ultimately there is going to have to be some kind of duty established. Otherwise, as Justice Stevens suggests, any volunteer going along on an inspection, a newspaper reporter, anybody, would become automatically liable. And you surely don't take that position.
Kenneth B. Howard: --Do not... we do not take that position, Justice O'Connor.
Sandra Day O'Connor: So you have to rely on the nature of the duty created under the collective bargaining agreement, don't you?
Kenneth B. Howard: Not under the collective bargaining agreement. By an examination of the conduct itself. If, for instance, we... we were examining the conduct of the union in this particular case with regard to an inspection, and there was never an inspection with regard to a certain area of the mine. They never walked into it but they did inspect a different area of the mine, but the collective bargaining agreement said you should inspect the whole mine. We could not rely upon the collective bargaining agreement under Idaho law. Also, with regard--
Anthony M. Kennedy: Well, I take it under Justice O'Connor's hypothetical, if you have some... and Justice Stevens', if you have some independent volunteer that goes down there and makes an inspection, that person is liable (a) if it is negligently done and (b) if the injured party reasonably relies on it. Isn't that the theory of the Idaho court, or is it?
Kenneth B. Howard: --Those are two of the elements involved. The elements also involved... it has to be an undertaking of services for the protection of another. That is why it is relevant in this case, particularly with regard to safety. The Restatement of Torts is not just talk about any kind of undertaking, it talks about the undertaking of services for the protection of another, and it has to then either increase the risk of harm or it has to call for some reliance on the part of the parties involved.
Byron R. White: You mean... you don't mean undertaking in the sense of a promise. It's just, you... just by conduct you act in a way for the purpose of protecting somebody.
Kenneth B. Howard: That is correct, Justice White. It is the conduct itself which is the focus of the examination under the Idaho law in this case.
Antonin Scalia: It is crucial to the Idaho law that it be for the benefit of another, right? I mean, if... if the people who did inspecting were insurance underwriters, and the only reason they are looking for it is to see whether it is worth taking out a policy on this mine, they would not acquire any obligation to the miners by that inspection, I assume. Right?
Kenneth B. Howard: Justice Scalia, yes, absent some showing that they undertook for that--
Antonin Scalia: For the miners.
Kenneth B. Howard: --Right.
Antonin Scalia: So the only way you really get this union is because the union did it for the workers, and doesn't that really get you into the collective bargaining agreement? The only reason you know that these people are not like insurance underwriters is because they are the bargaining representatives of these people. Doesn't the whole tort ultimately rest upon their bargaining representative capacity?
Kenneth B. Howard: Justice Scalia, I don't believe that it does. What the common law of Idaho does is supply that same kind of an obligation to anyone. It isn't just a union, you don't just have to go back to the union undertaking the services for the protection of another on behalf of the employer. If the union nonetheless has that obligation or takes on that obligation under its collective bargaining agreement, and has an independent duty, a parallel duty, if you will, under the state law, then the state law does provide this obligation. The state law doesn't arise, however, unless the union actively engages in the conduct itself, and the examination of the conduct yields the duty.
Antonin Scalia: The conduct for the benefit of the other. The thing is, it seems to me you don't quite reach your goal unless you prove that the unit did it... did it for the benefit of the employees. And the only way you prove that is to show the jury that this is their union. Of course it is doing it for their benefit. It is not an insurance underwriter. And that gets you into the collective bargaining agreement, it seems to me. It gets you into the relationship of the union as the collective bargaining representative of the employees.
Kenneth B. Howard: I don't believe, Justice Scalia, that the Idaho law or the Restatement of Torts requires that it be for the benefit necessarily of the union members. The elements are that the services are services to another, and they are undertaken... the services that are owed by a third person for the protection of a third person. Now, the benefit may, may in fact flow to the employer in this case, who is having part of its obligation as an employer undertaken by the union. The union may view it, and even the union members may view it in fact as a partial benefit to them. But in fact the employer may be receiving the benefit, so I am not sure an analysis strictly based on benefit is consistent with the restatement position. We look at whether or not the services are undertaken for the benefit of another, for the protection of another, and whether or not those services are owed by a third person.
John Paul Stevens: May I just ask one other question? Is there any place in your pleading, other than paragraph 13 of the complaint, where you set forth your concept of what the state law cause of action is?
Kenneth B. Howard: Within the pleading itself, meaning the--
John Paul Stevens: Yes.
Kenneth B. Howard: --complaint, not the interrogatories and--
John Paul Stevens: Yes.
Kenneth B. Howard: --No, there is not. That is the extent of the pleadings that have been filed in this case, I think are the ones that are in the appendix--
John Paul Stevens: And they were written at a time when you apparently did rely on the collective bargaining agreement as creating some of the duty.
Kenneth B. Howard: --I think--
John Paul Stevens: At least they appear to be, that they undertook--
Kenneth B. Howard: --I think, Justice Stevens, that they were written at a time when the basic notice pleadings were the foundational view that we were taking in this particular case. We had established... we had pled that there was a duty that arose under state law--
John Paul Stevens: --The failure is you... they failed to require fire drills, and they failed to require personal protective equipment. That sort of thing. Failed to... I take it those would be failures in its bargaining capacity to get the company to do those things, the way you described them there.
Kenneth B. Howard: --No, there were failures in terms of the conduct of what was done and what was done negligently with regard to this particular undertaking. Under the Idaho law, if we cannot prove that there was in fact conduct which was undertaken and done negligently, we lose this case on a factual basis. We do not carry our burden of proof.
John Paul Stevens: I still... it's still hard for me to understand... somehow or other before you can find a tort you have got to find what the duty was that was assumed, just exactly what its dimensions were that you alleged were... I am still... and the Idaho Supreme Court really is not very helpful. It says they, they assumed a duty by engaging in this conduct. But their description would cover my hypothetical case, but you don't seem to go that far. My... of trade association or just some volunteer making an inspection. What... what is your... maybe you could just state it for me. What do you think that the union's duty was?
Kenneth B. Howard: In this particular case?
John Paul Stevens: And how it arose.
Kenneth B. Howard: The union, by actually engaging in the inspections, by going underground and by factually addressing issues in an actual capacity--
John Paul Stevens: What do you mean by an actual capacity?
Kenneth B. Howard: --Going underground, making the inspections--
John Paul Stevens: Right.
Kenneth B. Howard: --for the purposes of an inspection. And with regard, in this particular case, to inspections that were owed in part by the employer. I don't think there is any question about the fact that the employer owes a fundamental duty to provide a safe place for its... for its workers. In this particular case, and part of our burden of proof is, at the time of trial, to show that this undertaking was one that was owed by another, owed by the employer. So the duty to provide a reasonably safe place to work has, as part and parcel of it, a duty to inspect and to examine the premises, and to determine what unsafe conditions may exist and what needs to corrected, and what the corrective process should be. To the extent that the union actually engaged in that conduct, that is the extent of the duty that I think that the Idaho Supreme Court has established that the union owes in this case--
John Paul Stevens: But if their conduct measures their duty, they obviously did what the conduct shows. You are in fact saying they failed to do something more.
Kenneth B. Howard: --No, what I am saying, Justice Stevens, is that once they engage in that duty, then they have to do it in a reasonably prudent fashion. They have to exercise due care. The due care becomes the standard with which they discharge that duty.
John Paul Stevens: Well, say they... they look at a lot of things and they acquire some information. Now what... don't you have to say they have some duty to report what they found to someone? Or what? I... I'm still not... I mean, they have looked at it, they have engaged in the conduct. And then you are saying they've got a duty to do something more.
Kenneth B. Howard: They have a duty to do something with that information, yes, to act--
John Paul Stevens: And where is... what is the source of that duty?
Kenneth B. Howard: --The duty just, again, is to act with regard to reasonable care. Now, what reasonable care is under the circumstances of this particular case is what did they do and was it reasonable. They could report this particular deficiency, whatever it may be, or corrective process, to management. If manage... if they had no obligation more than that, and that... and they did not carry out that reporting aspect of it, and did not act with due care with regard to that reporting--
John Paul Stevens: Well, but if they're... they're being accompanied by management personnel, and they both look at the same thing, are you in effect saying that they saw something that management didn't see, and they had to tell management about what they saw? Is that what you... I mean, I don't see how you can talk about a duty to report to management when it is a joint inspection.
Kenneth B. Howard: --But there may be a number of things that you see underground, maybe jointly, maybe not, but the obligation then is to carry out some kind of an activity to bring those deficiencies to the attention of the individual who has the ability to correct them. That may be by way of discussion. That may be by way of reporting through a committee or reporting directly to some supervisor about the deficiency. But that is the due care required in this particular case is that to the extent that they engaged in that conduct, they must do it with due care. They have indicated they don't have that duty of due care at all. All they have is a duty of fair representation, and that fair representation duty does not extend to due care. It extends only to the extent that they--
John Paul Stevens: Well, I think they, I think they agree that if they promise to inspect they have a contractual duty to inspect.
Kenneth B. Howard: --Justice White, I think that... at least my reading of the union's position is that to the extent that they undertook a duty to inspect, which they deny... specifically they deny that they inspected in this case.
John Paul Stevens: How do you know what they undertook to do, in the way you use undertake? How do you know what they did underground?
Kenneth B. Howard: We have to, we have to get... glean that information from the factual circumstance of the case. That is to call witnesses and to look at examination of records to find out what they did.
John Paul Stevens: Don't you think the union... is it fair to say that the union undertook, or what it did underground was what it bargained the employer out of letting them do? What did they actually... what did the contract actually entitle the union to do underground? Just to accompany the Federal inspectors? I mean the... what did they bargain for and get in the collective bargaining contract?
Kenneth B. Howard: The position which the union has taken, and I, which I concur in, quite frankly, that the collective bargaining gave them by way of rights is several things. To attend certain visits and inspections by the state inspector but not by the Federal inspector.
John Paul Stevens: Well, just attend. What were they supposed to do? They just went with them?
Kenneth B. Howard: That's all, that's all they are saying they had to do. They had no duty to inspect. Well, what do you think they-- --I believe that they actually undertook an inspection. I believe that the proofs in this case show that they actually inspected and reported deficiencies, and they made recommendations, and that they used the occasion of those inspections in order to determine dangerous conditions underground and try and achieve some corrective process, which was outside the collective bargaining agreement. It was under the state law of Idaho. It had nothing to do with their powers under the collective bargaining agreement. We don't examine the collective bargaining agreement at all to find out what they could have done or what they should have done. What we examine is their actions and find out what they did do, and did they in fact carry that out in a reasonable fashion. And the answer in that case is... in this particular case is no. Under the collective bargaining agreement they had set up a joint safety committee consisting of union as well as management individuals. And they would, after these inspections, go back and visit during these safety meetings for the purpose of exchanging information and making recommendations for corrective action. To the extent that they engaged in that activity, regardless of what the union provided, or, excuse me, regardless of what the collective bargaining agreement provided, to the extent that they engaged in the activity, the reporting those deficiencies, they had a duty to do it in a reasonable fashion. And that is all that the Idaho law says. And there is no comparable Federal law with regard to enforcing that kind of a remedy. The union has taken the position here that its only duty is that of fair representation, which does not... never raises to the level of due care. It simply stops at having a duty not to exercise discriminatory conduct or act in an arbitrary fashion. In this particular case it's odd that the union should say that it has only a duty of fair representation because, first, in order to have a duty of fair representation I would think that they would have to be working within the confines of the collective bargaining agreement. Our position is that they were not. They were working within the confines of duty... duties that were actually undertaken underground. And therefore their duty is one of due care. And that can't be described by the duty of fair representation, which only reflects upon their traditional role as a collective bargaining agent, as an agent or an entity for the purposes of achieving grievances.
John Paul Stevens: xxx a union is going to be ill advised ever to bargain the employer out of the privilege of attending an inspection.
Kenneth B. Howard: Well, Justice White, I don't think they would be ill advised at all. I think the reality of present day unionism is that, like any other economic activity in our country, they have to go out and compete for members. And they are going to provide the best possible service. If the Federal law only provides that that service never accompanies, or never reaches the level of reasonable care, then they won't achieve reasonable care. However, if the state law is there to protect the employees with regard to the duty of reasonable care, then everybody will engage in reasonable care and we'll have a safer work place.
John Paul Stevens: You think there is a competitive market out there for unions.
Kenneth B. Howard: I do.
John Paul Stevens: Really? May I ask one other question? In your complaint you alleged that the union misrepresented its safety concern and its expertise to the rank and file, and I think there was a fraud... in effect a fraud claim. Am I correct that that is out of the case now, that the summary judgment was entered against you on the fraud part of the case?
Kenneth B. Howard: That is correct. The fraud claim is out.
John Paul Stevens: So that you, you don't rely at all on a theory of the union making... at this point in the case, making misrepresentations to its members about its own ability to conduct inspections or the success it has had in inspecting, or anything like that?
Kenneth B. Howard: No, Justice Stevens. Just upon the conduct itself.
John Paul Stevens: Just that they were negligent in doing the inspection. You say on the contract?
Kenneth B. Howard: Conduct.
John Paul Stevens: Conduct, all right.
Kenneth B. Howard: One of the aspects of this case with regard to the duty of fair representation that is interesting with regard to the union's position at any rate is that there are a number of developing areas where unions are now starting to engage in traditional roles which had heretofore been strictly the roles of employers. Unions are starting to own businesses, to direct businesses, to manage businesses, as well as being unions. There has to be a line someplace between where this duty of fair representation stops and the duty of due care that may be owed by these other roles which the union is engaging in begins. And that is exactly the demarcation, the line that is drawn in part by this state law. That state law here indicates that where the union engages in an activity, where it actually undertakes an activity owed by another, in this case by the employer, it is now taking on a partial role of the employer, it must live up to that duty of care which the employer would owe. It doesn't have a lesser duty of care, and can't be given a lesser duty of care with regard to that particular aspect of its undertaking, or it would do violence to the fact that here we have a duty which would normally be owed by an employer, where they would owe due care, but now, because the employer can shift it to the union, the union does not owe the due care. The union only owes a different duty, and that is to avoid discriminatory or arbitrary conduct.
Byron R. White: xxx the employer shifted... the employer pays what it's... what it has had to pay. But what it has had to pay is limited by Idaho law.
Kenneth B. Howard: But even under Idaho law the--
Byron R. White: Isn't that right?
Kenneth B. Howard: --Well, the employer has a right under Idaho... yes, the employer has a right under Idaho law to retain--
Byron R. White: Well, it... it was held to have... it has a duty, and it paid for it.
Kenneth B. Howard: --But Idaho law--
Byron R. White: It's strict liability, is it?
Kenneth B. Howard: --Well--
Byron R. White: To a limited extent.
Kenneth B. Howard: --Idaho law has... the workmen's compensation law for Idaho certainly has a duty owed by the employer, and it has set up a system in order to... in exchange for the duties owed by the employer directly in the employment capacity, to a statutory scheme. But Idaho law specifically addresses the liability of third parties who may be engaged by the employer within that employment circumstance. That protection, that workmen's comp shield, only applies to the immediate employer. It does not apply to any third parties, whether they are supplying machinery or supplying goods or services or supplying inspection services. And the Idaho court has long acknowledged that the remedies available through the comp system are not intended through the employer to act as a complete source of remedies for injured people within the work place, that there are other sources of those remedies. And the comp statute specifically recognizes and authorizes that. The union simply falls, in this particular case, into the same category that anybody would who was engaging in inspection activities and safety-related activities with regard to working individuals in the work place, and making advices to the employer. To the extent that they did that as a private individual, whether under a contract or whether under some other kind of an undertaking, to the extent that they did that, they did it negligently.
Byron R. White: But... Idaho law is that absent some third party undertaking to inspect for the employer, the liability of the employer is all the injured miners can look to.
Kenneth B. Howard: If the... that is correct. If there are no other third parties who are engaged in activity which contribute to the loss, then the workmen's compensation is the sole remedy which would be available to the employees. Thank you.
William H. Rehnquist: Thank you, Mr. Howard. Mr. Cohen, do you have rebuttal? You have four minutes remaining.
George H. Cohen: Thank you, Mr. Chief Justice. I want to just remind the Court we are here on summary judgment. The state of the record is undisputed in the following regards. Firstly, that the only reason the union was actually performing and the basis for the performance of its functions was a direct result of Article IX, the safety and health article of the contract. That is Einar Pederson's affidavit in Joint Appendix page 47a. He was a member of the local union safety committee. Thereafter, the actual conduct that the union engaged in was totally consistent with the limited role that was given to it under the collective bargaining agreement, the role in relevant part of accompanying these inspectors. There is absolutely no record evidence to indicate that the union on its own conducted any inspections of this mine. Insofar as the question concerning whether the union assumed any of the employer's responsibilities to provide a safe and healthful work place, the trial court, after the full summary judgment proceedings, found, at page 100a of the appendix, that in fact the union did not assume the employer's role or responsibility for safety and health at this work place.
William H. Rehnquist: Well, you say the trial court found after summary judgment proceedings.
George H. Cohen: Yes.
William H. Rehnquist: Ordinarily trial courts don't make findings of fact in summary judgment proceedings. How did this happen?
George H. Cohen: Well, they laid out the undisputed facts--
William H. Rehnquist: Undisputed facts?
George H. Cohen: --and then the conclusion, Mr. Chief Justice, was the defendant did not undertake to perform the safety functions owed by the Sunshine Mine to rank and file employees. And then they... they--
William H. Rehnquist: So the trial court found that because both parties agreed that it was correct, I take it?
George H. Cohen: --Yes. As well as the documentary evidence which demonstrated what the employer's responsibility was.
Byron R. White: Suppose we agree with you that the union's duty is measured by the duty of fair representation. And suppose the case... and you say you can be sued on that duty, under that duty, and that Federal law controls. Suppose the case goes forward, do you think that the plaintiff could prove a breach of duty of fair representation by proving merely negligence?
George H. Cohen: No, I don't, Mr. Justice White, and I believe the substance of this Court's holdings in fashioning the duty of fair representation were designed to avoid that, the mere negligence or bad judgments, because on balance, in balancing all the competing interests that are at work here there was a recognition that that would unduly hamstring the manner in which the union was supposed to operate under our Federal labor relations system.
Byron R. White: In this context, what would breach the duty in carrying out whatever the collective bargaining... would it have to be arbitrary conduct?
George H. Cohen: Discriminatory conduct, refusing to look at a problem that a particular employee called to their attention because of the individual's union or non-union membership, because of any internal political disagreement--
Byron R. White: Well, what else besides discrimination?
George H. Cohen: --Arbitrary conduct is, of course--
Byron R. White: What does that mean? You mean negligence is not arbitrary?
George H. Cohen: --Well, as of this point in time the Court certainly has not accepted the proposition that negligence is arbitrary, yes.
William H. Rehnquist: Thank you, Mr. Cohen. The case is submitted.