Petition for Writ of Certiorari — International Mill Service v. Aubuschon
Supreme Court brief1989
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Supreme Court, U.S
88-1479 4% | PlLew
No. 88- man 9 1989
JOSEPH F SPANIOL, UR
— tt RK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1988
INTERNATIONAL MILL SERVICE,
and
THOMAS VAN DeN HANDE!
Petitioners,
VS.
JAMES AUBUSCHON,
Respondent.
On Petition for a Writ of Certiorari
to the Supreme Court of Illinois
PETITION FOR A WRIT OF CERTIORARI
IRA L. BLANK
Counsel of Record
LAURA J. KIPNIS
POPKIN & STERN
8182 Maryland Avenue
15th Floor
St. Louts, Missouri 63105
(314) 862-0900
Attorneys for Petitioners
St. Louis Law Printing Co., Inc., 1330S Manchester Road 63131 314-231-4477
QUESTIONS PRESENTED
This case presents the question of whether an order by the
highest court in Illinois, pursuant to which a collective bargain-
ing unit employee may maintain a state law defamation action
against his employer and an agent of his employer for their
publication of a notice of discipline to the employee’s union, as
required by the applicable collective bargaining agreement (in-
cluding work rules promulgated thereunder and the settlement
of a grievance thereunder), conflicts with this Court’s prior
decisions regarding the test for preemption of state law claims
under Section 301 of the Labor Management Relations Act, 29
U.S.C. §185, and/or Sections 7 and 8 of the National Labor
Relations Act, 29 U.S.C. §§157 and 158.
This case also presents the question of whether the continuing
confusion among federal and state courts, concerning how pro-
perly to apply the preemption tests under Section 301 of the
Labor Management Relations Act and Sections 7 and 8 of the
National Labor Relations Act to state law defamation claims, as
typified by the order at issue herein, is jeopardizing the federal
scheme of a uniform body of federal labor law and, hence, war-
rants a decision by this Court on this important issue of federal
labor law.
PARTIES
The parties named in the caption are the only parties to this
action. Pursuant to Supreme Court Rule 28.1, International
Mill Service identifies its parent companies, subsidiaries (except
wholly owned subsidiaries) and affiliates as follows:
NEOAX, INC.
IU International Corporation
Envirosafe Services, Inc.
Intermetal Mexicana S.A.
IMS Lycrete Egypt, Ltd.
ili
TABLE OF CONTENTS
Page
i nab ccesaseeSestaceccereses i
Es pt ES il
EL ill
EE eee Vv
Opinions Below ..................eeeseceeeeeceee l
i De as ccc css aseeseaee 2
ESE Ena 2
I a 3
Ny ys kk cc anes cckseekd sees 3
OES PTET Cer eee ee 8
C. Appellate Court of Illinois, Fifth Circuit .... 9
D. Supreme Court of Illinois ................. 9
Reasons For Granting the Writ ..................... 11
A. The Order Of The Illinois Supreme Court Is
A Final Judgment Or Decree By The Highest
Court Of The State Of Illinois ............. 11
B. A Writ Of Certiorari Should Be Granted
Because The Order Of The Illinois Supreme
Court Conflicts With The Principles Govern-
ing Preemption Under Section 301 Of The
LMRA Set Forth In This Court’s Prior Ap-
Sr ee 13
C. A Writ Of Certiorari Should Be Granted
Because The Order Of The Supreme Court Of
Illinois Conflicts With This Court’s Prior Ap-
plicable Decisions Regarding Preemption
Under Sections 7 and 8 Of The NLRA ...... 18
D. A Writ Of Certiorari Should Be Granted
Because, As Illustrated By The Order Of The
Illinois Supreme Court, Important Questions
Of Federal Labor Law Which Should Be
Decided By This Court Remain After This
Court’s Decision In Allis-Chalmers and
Appendix:
Part A: Order Of The Supreme Court of Ill-
inois reversing the decision of the
Appellate Court of Illinois, dated
December §, 1966 .........00s05.
Part B: Decision of The Appellate Court of
Illinois, Fifth District, dated April
poe ere eee yr ern rr
Part C: Order of the Circuit Court, Third
Judicial Circuit Madison County,
Illinois, dated March 10, 1987.....
Part D: Order of the Supreme Court of II-
linois Denying the Motion for
Reconsideration and Petition for
Rehearing, dated January 11, 1989.
Part E: Order of the Supreme Court of Illi-
nois recalling and staying the Man-
date to the Circuit Court, Third
Judicial Circuit Madison County,
Sh ee Tee one ee
¢ ie ee CF 8 om freee
pS feo tt % . y Se ae eee ara
y TNR Food 2. FR eep Nn
A-2
A-8
A-10
A-11
A-12
A-13
A-13
TABLE OF AUTHORITIES
Page
Cases:
Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985).... 9,13
14,15,20
Belknap, Inc. v. Hale, 463 U.S. 491 (1983)............ 13
Chapski v. Copley Press, 92 Ill. 2d 344, 442 N.E.2d 195
Ss NON ii sa SoS aha eka kee Le eee es 17
Coca-Cola Bottling Co., 9 Lab. Arb. (BNA) 197 (1947)
Pee SUE Se ra ob aaeca keene tcat ree 21
Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
PR Sch hae ea eaa eas Pocus 11
Cokley v. Pacific Gas and Electric Co., 119 L.R.R.M.
(eared DOoe Cred. CML. IGOR) os a Cannes 21
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) .. 12
Farmer v. Carpenters, 430 U.S. 290 (1977) ............ 9
Green v. Hughes Aircraft Co., 630 F.Supp. 423 (S.D.
Ee Pee Oe Ds hee tite + 21
Gregory v. Simon Brothers, Inc., 640 F.Supp. 1252
i | rer ry ee ro RN tas a 21,22
Hanks v. General Motors Corp., 859 F.2d 67 (8th
Gat. Si oak cen hk andnee cee s ere meee 14
Hellesen v. Knaus Truck Lines, Inc., 370 S.W.2d 341
Ce: REE 6-45 kV eke eee oo itde wate oe eee eee 17
Hull v. Central Transport inc., 628 F.Supp. 784 (N.D.
WE, FI co xvcace cu cceakseueeee cease eee 20,21,22
Joftes v. Kaufman, 324 F.Supp. 660 (D.D.C. 1971) .... 17
Vi
Krasinski v. United Parcel Service, 124 Ill. 2d 483,
oR Ee) rr 10,15,21,22
Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988).......... 15
Lingle v. Norge Division, Magic Chef, 486 U.S. __,
rr er is bg cee anak ake eee 14,15
Linn v. United Plant Guard Workers, 383 U.S. 53
hg ar ai a ae Ge ENTE 9,19,20
Local No. 438 v. Curry, 371 U.S. 542 (1963) .......... 11,13
Nelson v. Lapeyrouse Grain Corp., No. 87-161, slip op.
(Ala. Sept. 30, 1988) (LEXIS, States library, Ala.
I a a ve hee ed oaks Paes Crea 21,22
Newberry v. Pacific Racing Ass’n., 854 F.2d 1142 (9th
ee ek lg ula dk «aaa. boa eee 21
N.L.R.B. v. Amoco Chemicals Corp., 529 F.2d 427
eGo ea aio ud scuen du Kapaa eee 19,21
NLRB v. Weingarten, Inc., 420 U.S. 251 (1975) ....... 24
Redway Carriers, Inc., 274 N.L.R.B. 1359 (1985) ...... 19
Reynolds Metal Co. v. Mays, 516 So.2d 517 (Ala. 1987),
vacated and remanded, L.o , 100
an goa ade oa pense aden eee 21
San Diego Building Trades Council v. Garmon, 359
Slee cee nig oe a ko 3 ee ae 13,18,19,20
Scott v. General Motors Corp., 645 F.Supp. 914 (E.D.
ee ee ok ekg ova IEE ee 21
Seid v. Pacific Bell, Inc., 635 F.Supp. 906 (S.D. Cal.
Strachan v. Union Oil Co., 768 F.2d 703 (Sth Cir.
ALMA Pe Ree gare Arran Pat gre eran psd ye? 21,22,24
Vii
Turner v. Gateway Transportation Co., 569 S.W.2d
er es Ges PU. DVO oc hence ciben caeasexevas 17
Zeinfeld v. Hayes Freight Lines, Inc., 41 Ill. 2d 345,
Mee WO ott UR NOOB). og vnc vec cicaeccis 17
Constitutional Provisions:
Oe ee ecu cca endeaeenos 11
Statutes:
pe Ne . ee rer en eee Se 13,16,19,20
PMC EGE 5 i.6 sin s 6 4 ORE ATES ROS 18,19
Bes 564i Go ew dae eee a ee ee 18,19
Pe Sle BE hod en chan d kaise Ponaeres rater 11
ee en Oy lg OE vid oe a sie Se eee eek 8
Other Authorities:
F. Elkouri and E. Elkouri, How Arbitration Works
EE «Cara's «ab oo. sneha eae eee eae & ek 15,21
Restatement (Second) of Torts §583 (1977) ........... 17
Restatement (Second) of Torts §592A and Comment b
STE ck eck here eer tess Chee eee 17,23
No. 88-
IN THE
Supreme Court of the Wnited States
OCTOBER TERM, 1988
INTERNATIONAL MILL SERVICE,
and
THOMAS VAN DEN HANDEL,
Petitioners,
VS.
JAMES AUBUSCHON,
Respondent.
On Petition for a Writ of Certiorari
to the Supreme Court of Illinois
PETITION FOR A WRIT OF CERTIORARI
Petitioners hereby request that this Court issue a writ of cer-
tiorari to review an order of the Supreme Court of Illinois
entered December 8, 1988.
OPINIONS BELOW
The unpublished order of the Supreme Court of Illinois is
reprinted as Part A of the Appendix.
The opinion of the Appellate Court of lilinois, Fifth District,
which is reported at 167 Ill. App. 3d 965, 522 N.E.2d 898
(1988), is reprinted as Part B of the Appendix.
=
The unpublished order of the Circuit Court of Madison
County is reprinted at Part C of the Appendix.
STATEMENT OF JURISDICTION
On December 8, 1988 the Supreme Court of Illinois entered
an order reversing the decision of the Illinois Appellate Court,
Fifth District in this matter, and remanding this case to the Cir-
cuit Court of Madison County, Illinois for further proceedings.
The Illinois Supreme Court’s order cited, without comment, its
decision in Krasinski v. United Parcel Service, 124 Ill. 2d 483,
530 N.E.2d 468 (1988). On December 39, 1988, Petitioners filed
with the Supreme Court of Illinois a Motion for Reconsidera-
tion or, in the Alternative, Petition for Rehearing. On January
11, 1989, the Supreme Court of Illinois denied said Motion and
Petition, and issued its mandate to the Circuit Court of Madi-
son County, Illinois. This order is reprinted as Part D of the
Appendix. On January 21, 1989, Petitioners filed with the
Supreme Court of Illinois a Motion to Recall the Mandate based
on Petitioners’ intent to file this petition for a writ of certiorari.
The Supreme Court of Illinois granted the Motion to Recall on
February 1, 1989. This order is reprinted as Part E of the Ap-
pendix.
The jurisdiction of this Court is invoked pursuant to 28
U.S.C. §1257.
STATUTES INVOLVED
The statutes involved in this Petition are 29 U.S.C. §185, and
29 U.S.C. §§157 and 158. The full text of these statutes are set
forth as Part F of the Appendix.
en
STATEMENT OF THE CASE
A. Introduction
At issue herein is an order by the highest court in Illinois that
enables state law to regulate conduct mandated by a collective
bargaining agreement. This case, therefore, involves a decision
by the Illinois Supreme Court which conflicts with applicable
decisions of this Court. In addition, this case exemplifies the
confusion which continues to exist among federal and state
courts regarding the treatment of state tort claims in the context
of a collectively bargained relationship. Hence, this case also
involves important questions of federal labor law which should
be decided by this Court.
This case originated when James Aubuschon
(‘‘Aubuschon’’), a unionized employee of the International Mill
Service (‘‘IMS’’), filed a defamation claim in the Third Judicial
Circuit, Madison County, Illinois against his employer, IMS,
and IMS’s job site superviscr Thomas Van Den Handel (‘‘Van
Den Handel’’). At the time Aubuschon’s alleged defamation
claim arose, he was employed by IMS pursuant to a collective
bargaining agreegment (‘‘Contract’’) with Local 2762 of the
United Steel Workers of America (‘‘Union’’).
The Contract contained the following relevant provisions:
ARTICLE 5: SENIORITY
5.5: Continuous service is broken by:. . . (B) Discharge for
proper cause.
ARTICLE 7: GRIEVANCES
7.1: The procedure under this section is available to the
Union and the Company for the presentation and settle-
ment of grievances arising under the terms of this Agree-
ment. When a grievance is to be filed by the Company,
they shall do so at the second step. Should any difference
arise between the Company and the Union, or its members
oe
employed by the Company, as to the interpretation or ap-
plication of, or compliance with, the provisions of this
Agreement regarding working conditions or other matters
or should any dispute of any kind arise, there shall be no
interruption or impeding of the work, work stoppages,
strikes or lockouts on account of such differences, but an
earnest effort shall be made by the Company and the
Union to settle such differences orderly and promptly in
accordance with the procedures hereinafter set forth in this
section.
7.3: The decision of the arbitrator shall be final and bind-
ing upon the Company, the Union and all employees con-
cerned herein and the expenses incident to the service of
the arbitrator shall be shared equally by the Local Union
and the Company.
ARTICLE 13: SUSPENSION AND DISCHARGE
13.1: If an employee shall be suspended or discharged
from his employment after the date hereof, and shall claim
not later than the close of the second day following his
suspension of discharge (exclusive of Saturday or Sunday)
that his suspension or discharge was unjust, such suspen-
sion or discharge shall constitute a case arising under the
method of adjudicating differences herein provided. /n
cases where an employee has been suspended or dischcrg-
ed, the foreman shall notify said employee’s committee-
man of the case not later than the following work day. If it
should be ultimately decided under the rules of this Agree-
ment that the employee has been unjustly discharged or
suspended, the Company shall reinstate such employee
with payment for any working time lost. All such cases of
suspension or discharge shall be taken up and disposed
within five (5) work days from the date of the suspension
or discharge except when the case goes to arbitration. (Em-
phasis added).
—
13.3: Any reprimand of record to be issued to any
employee must be issued in the presence of a union
steward, and state the following information:
1: Name and seniority of the employee
Time and place of the incident complained of
Name of the Union Steward present
> YF PP
Reply of the employee (Emphasis added).
ARTICLE 15: MANAGEMENT
15.1: The management of the works and the direction of
the working forces including the right to hire, suspend or
discharge for proper cause, or transfer, and the right to
relieve employees from duty because of lack of work or for
other legitimate reasons, is vested exclusively in the Com-
pany, provided, however, that these rights will not be exer-
cised in any way inconsistent with, or in violation of any
other provision of this Agreement.
15.2: All employees must abide by reasonable rules and
regulations as may be established by the Company from
time to time.
ARTICLE 17: MISCELLANEOUS
17.6: Tools — It is agreed that mechanics will provide per-
sonal tools in the performance of their jobs, as specified by
the company, i.e., up to one inch and one-half opening
(1%"), one-half inch drives, as well as other related tools
in accordance with the established tool list.
The Company agrees to continue the practice of replacing
mechanic’s personal tools which are lost or missing at the
job site unless there is an abuse of this replacement provi-
sion. Broken tools which are guaranteed by the manufac-
turer will be the responsibility of the mechanic for repiace-
ay
ment; however, broken tools which are not guaranteed by
the manufacturer will be replaced by the company. Where
the manufacturer provides for partial credit for broken
tools the company will make up the balance towards the
price of full replacement.
Pursuant to Article 15 of the Contract, IMS had promulgated
and implemented a set of plant rules of conduct, the violation of
which subjected an employee to discipline, up to discharge.
These rules were in effect at all times relevant to this matter. The
rules which are pertinent to this matter are as follows:
16. Misusing or removing from the premises without
proper written authorization, company property,
records or other materials is prohibited.
19. Abuse or destruction of company property, tools or
equipment is prohibited.
24. Stealing is prohibited.
25. Unlawful or improper conduct off the plant premises
or during non-working hours which affect the
employee’s relationship to his job, his fellow
employees, his supervisor or the Company’s product,
property, reputation or goodwill in the community is
prohibited.
27. An employee shall be responsible for all Company
tools, equipment and property assigned to or requisi-
tioned by him or in his custody or care.
When Aubuschon commenced working for IMS, he had a set
of tools. In the summer of 1980, Aubuschon reported his tools
stolen and IMS replaced the allegedly stolen tools. In approx-
imately 1981, Aubuschon reported that the replacement tools
had been stolen. IMS again replaced Aubuschon’s allegedly
stolen tools. In February, 1982, Aubuschon again reported that
his tools were missing, and again asked IMS to replace his miss-
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ing tools. When IMS denied Aubuschon’s request, Aubuschon
filed a grievance alleging that IMS’s refusal to again replace his
tools constituted a contract violation. In settlement of this
grievance, IMS ultimately agreed to replace Aubuschon’s miss-
ing tools. IMS advised Aubuschon, however, that he would
have to accept and use the specific tools which IMS provided in
settlement of his grievance. Aubuschon subsequently denied
being advised that he would have to use the particular tools
which IMS had supplied to him.
When Aubuschon was advised of IMS’s decision, Aubuschon
asked for invoices for the tools that IMS supplied so that he
could establish (i) ownership of the tools, (ii) the value of the
tools if he decided to insure them, and (iii) proof of purchase of
the tools. {MS agreed to funish Aubuschon with the requested
invoices. After IMS had done so, Aubuschon took these tools
and invoices to the supplier of the tools, National Auto Supply.
The clerk at National Auto Supply advised IMS that
Aubuschon had attempted to exchange the tools for money.
Aubuschon claims that he attempted to exchange the tools IMS
had supplied for other tools.
On May 24, 1983, IMS’s job site superintendent, Van Den
Handel, held a meeting with Aubuschon and Ralph Gogolek,
the Union president. At that meeting, Van Den Handel gave to
Aubuschon and Gogolek copies of a notice of discipline and an
attached memo (‘‘Notice’’). The Notice stated as follows:
On Friday, May 13, 1983 the company received a call from
National Auto regarding your attempt to ‘‘sell back’’ your
-company supplied tools, using the copy of an invoice sup-
plied by the company. The company advised National
Auto not to accept them. This action on your part is a bla-
tant abuse of company supplied equipment and records
and amounts to theft.
Three (3) times now the company has replaced your tools,
the last time under very suspicious circumstances. Your at-
a
tempt to redeem your recently supplied company tools for
cash is a serious offense and warrants disciplinary action.
Hense [sic] you are hereby suspended for five (5) days
pending discharge.
IMS issued the Notice to Aubuschon because IMS considered
Aubuschon’s attempt to sell the tools for money to be a breach
of the Contract, a violation of the settlement of Aubuschon’s
previous grievance concerning IMS’s refusal to replace his miss-
ing tools, and a violation of IMS’s plant rules 16, 19, 24, 25 and
27. The Notice was issued to Aubuschon and Gogolek pursuant
to Sections 13.1 and 13.3 of the Contract.
Aubuschon’s employment was terminated on May 31, 1983.
Aubuschon grieved his discharge and that grievance was
ultimately submitted to arbitration pursuant to the Contract.
On November 28, 1983, the arbitrator issued his decision,
reinstating Aubuschon, but without back pay.
B. Trial Court Case
On March 19, 1984, Aubuschon filed a claim in the Third
Judicial Circuit Court for Madison County, Illinois for
malicious libel against IMS and Van Den Handel as a result of
publication of the Notice. IMS and Van Den Handel raised in
their answer the affirmative defenses of federal labor law
preemption, absolute privilege and qualified privilege. IMS and
Van Den Handel subsequently filed a Motion for Summary
Judgment based, among other things, on preemption of
Aubuschon’s state tort claim under Section 301 of the Labor
Management Relations Act (‘‘LMRA’’) and Sections 7 and 8 of
the National Labor Relation Act (‘‘NLRA’’). On September
24, 1986, the Circuit Court denied this motion. However, pur-
suant to Illinois Supreme Court Rule 308(a), Ill. Rev. Stat. Ch.
110A, 4308, the Circuit Court also ruled that the preemption
issue was subject to immediate appeal to the Appellate Court of
Illinois, Fifth District. Appendix, Part C.
—
C. Appellate Court of Illinois, Fifth District
IMS and Van Den Handel filed a timely appeal of the order of
the Circuit Court to the Appellate Court of Illinois, Fifth
District. The question presented on appeal was as follows:
The issue is whether a bargaining-unit employee’s defama-
tion action against his employer is preempted by federal
law under Section 301 of the Labor Management Relations
Act, 29 U.S.C. §185, or Sections 7 and 8 of the National
Labor Relations Act, 29 U.S.C. §§157, 158, where the ac-
tion is based upon a notice of discipline issued by the
employer stating the reason for the employee’s suspension,
the conduct which resulted in the discipline was alleged by
the employer to violate employer work rules established
pursuant to the collective bargaining agreement and to
relate to the collective bargaining agreement and the settle-
ment of a grievance, and the governing collective bargain-
ing agreement contained provisions relating to grievance
resolution and employee discipline.
The Appellate Court accepted the appeal and reversed the Cir-
cuit Court based on this Court’s decisions in A/lis-Chalmers
Corp. v. Lueck, 471 U.S. 202 (1985). The Appellate Court also
ruled that Aubuschon’s defamation claim did not fall within the
various exceptions to preemption under §§7 and 8 of the NLRA
which this Court delineated in Linn v. United Plant Guard
Workers, 383 U.S. 53 (1966) and Farmer v. Carpenters, 430
U.S. 290 (1977). Appendix, Part B.
D. Supreme Court of Illinois
Aubuschon appealed the Appellate Court’s decision to the
Supreme Court of Illinois. Aubuschon based his appeal on the
claims that the Appellate Court’s decision conflicted with deci-
sions of other Illinois Courts of Appeals and was manifestly un-
just. In the statement of facts portion of his Petition for Leave
to Appeal to the Illinois Supreme Court, Aubuschon admitted
_— on
that the Notice was provided ‘‘pursuant to the terms and condi-
tions of the collective bargaining agreement’”’ and that the
‘truth or the falsity of the statement contained in [the Notice
was] a matter of serious dispute between the parties, and re-
quired reference to the collective bargaining agreement for
substantiation or denial.’’
On December 8, i988, the Illinois Supreme Court allowed
Aubuschon’s petition for leave to appeal, reversed the decision
of the Appellate Court without opinion, and remanded the case
to the Circuit Court of Madison County for further pro-
ceedings. Appendix, Part A. The Illinois Supreme Court’s
order cited, without comment, the case of Krasinski v. United
Parcel Service, 124 Ill. 2d 483, 530 N.E.2d 468 (1988). Appen-
dix, Part A. The Illinois Supreme Court discussed at length in
Krasinski the issue of preemption under §301 of the LMRA and
§§7 and 8 of the NLRA.
IMS and Van Den Handel then filed with the Illinois Supreme
Court a Motion for Reconsideration or, in the alternative, a
Petition for Rehearing. The Supreme Court of Illinois denied
this motion/petition. Appendix, Part D. Thereafter, IMS ard
Van Den Handel filed a motion with the Illinois Supreme Court
to recall the mandate for further proceedings, based on Peti-
tioners’ intent to file this Petition for a writ of certiorari. The
Illinois Supreme Court granted the motion, and recalled and
stayed the mandate on February 1, 1989. Appendix, Part E.
aa | en
REASONS FOR GRANTING THE WRIT
The order of the Illinois Supreme Court in this case should be
reviewed on a writ of certiorari by this Court because it is in
direct conflict with applicable decisions of this Court. In addi-
tion, the order of the Illinois Supreme Court raises important
questions of federal labor law which are likely to recur and
which should be decided by this Court. Specifically, this case il-
lustrates and involves the practical problems state and federal
courts continue to have in applying the tests this Court devised
for determining when state law claims are preempted by federal
labor laws. This case also illustrates and involves the detrimen-
tal impact which can occur to the federal policy of uniform en-
forcement of federal labor laws when, as herein, confusion
regarding the preemption tests under federal labor laws leads
the highest court in a State to rule that state law may regulate
conduct mandated by a collective bargaining agreement.
A. The Order Of The Illinois Supreme Court Is A Final
Judgment Or Decree By The Highest Court In The
State Of Illinois.
Petitioners invoke this Court’s jurisdiction pursuant to 28
U.S.C. §1257. Accordingly, the Illinois Supreme Court’s order,
of which Petitioners seek this Court’s review, must be a final
judgment or order of the highest court in the State of Illinois.
The Illinois Supreme Court is the highest court in Illinois. Ill.
Const. art. VI, §1 et seq.; Ill. Rev. Stat. Ch. 37. The ruling by
that court in this matter, therefore, satisfies the second part of
the above-stated standard for this Court’s jurisdiction.
With respect to the finality requirement of 28 U.S.C. §1257,
this Court has previously ruled that this requirement is to be
given a ‘‘practical rather than a technical construction.’’ Local
No. 438 v. Curry, 371 U.S. 542, 549 (1963); Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 546 (1949). Moreover,
this Court has ruled that it shall treat the decision of a federal
|
—
issue as a final judgment for purposes of 28 U.S.C. §1257, and
will take jurisdiction without awaiting the completion of addi-
tional proceedings anticipated in lower state courts, if the
following criteria are met:
1. ‘‘the federal issue has been finally decided in the state
courts with further proceedings pending in which the
party seeking review here might prevail on the merits
on non-federal grounds, thus rendering unnecessary
review of the federal issue by this Court, and where
reversal of the state court on the federal issue would
be preclusive of any further litigation on the relevant
cause of action rather than merely controlling the
nature and character of, or determining the ad-
missibility of evidence in, the state proceedings still to
come’’; and,
2. ‘‘a refusal immediately to review the state court deci-
sion might seriously erode federal policy.”’
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 482-83 (1975).
This case satisfies both of these criteria.
The federal issue which the Illinois Supreme Court decided
was that §301 of the LMRA and §§7 and 8 of the NLRA do not
preempt Aubuschon’s state law defamation claim. If a trial
were to be held in Illinois state court on Aubuschon’s defama-
tion claim, IMS and Van Den Handel might prevaii on such
non-federal grounds as the defense of priviiege or the defense of
truth. If that were to occur, review of the preemption issues by
this Court would be unnecessary. However, if this Court were
to reverse the Illinois Supreme Court’s order, on the ground
that Aubuschon’s defamation claim is preempted by federal
labor laws, IMS and Van Den Handel would be spared the time,
expense and effort of defending themselves in any further state
court proceedings in this matter.
In addition, this Court has long recognized the existence of a
national policy of uniform federal labor law. Moreover, this
en
Court has recognized that state law claims can ‘“‘upset the
balance of power between labor and management expressed in
our national labor policy,’’ A/llis-Chalmers Corp., 471 U.S. at
212 n. 6, and can ‘‘create potential frustration of national pur-
pose.’’ San Diego Building Trades Council v. Garmon, 359
U.S. 236, 244 (1959). Accordingly, this Court has previously
ruled that failure immediately to review state court decisions,
such as the one herein, may seriously erode federal policy. See
Belknap, Inc. v. Hale, 463 U.S. 491, 497 n. 5 (1983); Curry, 371
U.S. at 550.
Based on the foregoing, the order of the Illinois Supreme
Court is a final determination of the highest court of the State
of I!linois for purposes of 28 U.S.C. §1257.
B. A Writ Of Certiorari Should Be Granted Because The
Order Of The Illinois Supreme Court Conflicts With
The Principles Governing Preemption Under Section
301 Of The LMRA Set Forth In This Court’s Prior
Applicable Decisions.
Section 301 of the LMRA grants federal courts jurisdiction
over suits for violations of contracts between an employer and a
labor organization representing employees of an industry affect-
ing commerce. 29 U.S.C. §185. In Allis-Chalmers Corp. v.
Lueck, this Court stated the importance of a uniform body of
federal labor law and stressed the importance of protecting the
effectiveness of industria! self-government through arbitration.
This Court then delineated the preemption test that it had
designed to ensure that parties could not avoid the effects of
federal labor laws by characterizing a claim for violation of a
collective bargaining agreement (properly brought pursuant to
§301 of the LMRA) as a state tort law claim.
Qur analysis must focus, then, on. . . whether evaluation
of the tort claim is inextricably intertwined with-considera-
tions of the terms of the labor contract. If the state tort
a eal
a on
law purports to define the meaning of the contract rela-
tionship, that law is preempted.
Allis-Chalmers Corp., 471 U.S. at 213. More recently, in Lingle
v. Norge Division, Magic Chef, this Court clarified that a state
law claim must be preempted by §301 of the LMRA if either the
plaintiff’s claim or the defendant’s defenses to the state claim
require reference to or interpretation of the applicable collective
bargaining agreement. Lingle, 486 U.S. ; , 100
L.Ed.2d 410, 419-20. ‘See Hanks v. General Motors Corp., 859
F.2d 67, 70 (8th Cir. 1988). It is Petitioners’ position that the
Illinois Supreme Court’s order upholding Aubuschon’s right to
pursue his state defamation claim against Petitioners conflicts
with the principles this Court set forth in A/llis-Chalmers Corp.
and in Lingle for resolving questions of preemption under §301
of the LMRA. It is also Petitioners’ position that this case
presents, for the first time, questions under Lingle regarding ap-
plication of the preemption test to a defendant’s defenses.
Aubuschon’s defamation claim and the defenses IMS and
Van Den Handel have raised to that claim are inextricably in-
tertwined with the terms of the Contract. Article 15 of the Con-
tract authorized IMS to discipline and discharge employees for
cause and to promulgate and enforce reasonable work rules.
This same Article required Aubuschon to comply with IMS’s
work rules. Sections 13.1 and 13.3 of the Contract required
IMS to provide the Union with notice of any suspension or
discharge IMS imposed. More importantly, these contractual
provisions also required that any reprimand IMS issued to a
bargaining-unit employee be in writing and state, among other
things, the time and place of the incident which led to suspen-
sion/discharge.
Under Illinois law, to establish a defamation claim a plaintiff
‘‘must set out sufficient facts to show that the defendants made
a false statement concerning him, that there was an unprivileged
publication to a third party with fault by the defendant, which
_
a
caused damage to the plaintiff.’’ Krasinski v. United Parcei
Service, 124 Ill. 2d 483, ___, 530 N.E.2d 468, 471 (1988) (em-
phasis added). On its face, therefore, Aubuschon’s defamation
claim raises three issues which can be resolved only by reference
to the Contract.
First, whether the statements in the Notice are false will de-
pend on what, for example, constitutes stealing and abuse of
company supplied equipment and records as those terms are
used in the work rules under the Contract.' That the meaning
of terms and phrases in a collective bargaining agreement need
not coincide with the meaning of those same terms and phrases
under state civil or criminal court proceedings is a well recogniz-
ed tenet of the ‘‘system of industrial self-government’’ favored
by federal labor law, i.e., arbitration. See Allis-Chalmers
Corp., 471 U.S. at 219; Lingle, U.S. at ___-:, 100 L.Ed.2d
at 422. This is perhaps best illustrated by the fact that the
language in a collective bargaining agreement can control the
allocation of the burden of proof and the standard of proof ap-
plied in an arbitration proceeding; similarly, the standard of
proof applied in labor management arbitrations, cven where the
employee conduct at issue might justify criminal prosecution, is
usually less than the burden a prosecutor in this country must
satisfy in criminal proceedings. F. Elkouri and E. Elkouri, How
Arbitration Works 614-15 and 661-63 (4th ed. 1985). In addi-
tion, interpretation of the Contract will be required to resolve
such issues as whether the term ‘‘stealing’’, as used in the work
rules, is synonymous with the term ‘‘theft’’, as used in the
Notice. Moreover, the truth of the statements in the Notice may
also be affected by the terms of the settlement of Aubuschon’s
1982 grievance under the Contract over IMS’s initial refusal to
' The reference in the plant rules to various types of prohibited con-
duct, such as stealing, and abuse of company supplied equipment and
records identifies ‘‘this arena as a subject for the collective bargaining
process - not the courts.’’ Laws v. Calmat, 852 F.2d 430, 433 (9th Cir.
1988).
en
a
replace Aubuschon’s tools again. Hence, Aubuschon’s ability
to establish that statements in the Notice were false, will depend
on the meaning of the allegedly defamatory statements under
the Contract.
Second, whether the alleged publication was privileged will
depend on whether IMS and Van Den Handel were required by
contract (and hence by federal labor laws)? to issue a notice,
containing the allegedly defamatory statements contained in the |
Notice, to the people who received the Notice. For example, in-
terpretation of the Contract will be needed to determine
whether the Union President who received the Notice was acting
in the capacity of a committeeman, under §13.1 of the Con-
tract, and/or a steward, under §13.3 of the Contract, when he
|
received the Notice.
Third and finally, whether there was ever a publication to a
third party will depend on the nature of the relationship bet-
ween Aubuschon and the Union. Again, this issue depends on
the terms of the Contract and how that contractual relationship
has been shaped by the existing body of federal labor law.
NEI ee eee
Similarly, the defenses available to IMS and Van Den Handei
require reference to and interpretation of the Contract. IMS
and Van Den Handel timely raised the affirmative defenses of
absolute privilege and qualified privilege to Aubuschon’s claim.
If a trial occurs, they may also raise the defense of truth. As
stated previously, whether the statements in the Notice are true
or false depends on whether and how various terms and phrases
contained in the Notice are defined in, or interpreted under, the
Contract.
As to the affirmative defense of qualified privilege, the
Supreme Court of Illinois has defined the elements of this
? §301 of the LMRA, 29 U.S.C. §185, grants federal courts jurisdic-
tion over suits for violations of collective bargaining agreements.
—
defense as follows: (1) good faith by the defendant; (2) an in-
terest or duty to be upheld; (3) a statement limited in its scope to
that purpose; (4) a proper occasion; and (5) publication in a
proper manner and to proper parties only. Zeinfeld v. Hayes
Freight Lines, Inc., 41 Ill. 2d 345, 349, 243 N.E.2d 217, 221
(1968). Obviously, the elements of this defense cannot be
evaluated or resolved without referring to and interpreting
whether IMS and Van Den Handel had a duty under the Con-
tract to advise Aubuschon and the Union of the reason for
Aubuschon’s suspension and termination, and whether IMS
and Van Den Handel properly fulfilled their contractual obliga-
tions when they published the Notice to the Union.
With respect to the final affirmative defense IMS and Van
Den Handel have raised, the Illinois Supreme Court has ruled
that the defendants in a defamation action have an absolute
privilege, and the alleged defamation is not actionable, if the
plaintiff consented to the publication. See Chapski v. Copley
Press, 92 Ill. 2d 344, 442 N.E.2d 195, 198 (1982) (recognizing
the privileges set forth in the Restatement (Second) of Torts
§583 (1977)). Whether Aubuschon consented to any contrac-
tually required publication when he became a member of the
Union is thus another pertinent issue which cannot be resolved
without interpretation of the Contract.’ Moreover, it is well
recognized that an absolute privilege attaches to any publication
which a party is under a legal compulsion to make. See Chap-
Ski, 442 N.E.2d at 198 (recognizing the privileges set forth in the
Restatement (Second) of Torts §592A and Comment b (1977)).
To determine whether such a legal compulsion existed in this
case, the obligations of IMS and Van Den Handel under the
’ There is authority for finding such consent based on membership
in a union whose collective bargaining agreement requires the
employer to notify the union of discipline and/or discharges. Joftes v.
Kaufman, 324 F.Supp. 660 (D.D.C. 1971); Hellesen v. Knaus Truck
Lines, Inc., 370 S.W.2d 341 (Mo. 1963); Turner v. Gateway Transpor-
tation Co., 569 S.W.2d 358 (Mo. Ct. App. 1978).
Contract, and under federal labor laws regulating enforcement
of collective bargaining agreements, must be considered and
analyzed.
In sum, Aubuschon’s state law claim and the defenses IMS
and Van Den Handel have raised to that claim raise questions
which cannot be answered without reference to and interpreta-
tion of various terms and provisions of the Contract. Accor-
dingly, the order of the Supreme Court of Illinois in this case,
allowing Aubuschon to pursue his defamation claim, conflicts
with the preemption principles this Court set forth in Allis-
Chalmers and Lingle, and threatens the national scheme of a
uniform body of federal labor laws. This Court should issue a
writ of certiorari to resolve this conflict and to protect the na-
tional scheme of uniform federal labor laws.
C. A Writ Of Certiorari Should Be Granted Because The
Order Of The Illinois Supreme Court Conflicts With
This Court’s Prior Applicable Decisions Regarding
Preemption Under Sections 7 And 8 Of The NLRA.
In San Diego Building Trades Council v. Garmon, 359 U.S.
236 (1959), this Court delineated the following test for preemp-
tion under §7 and §8 of the NLRA:
It is essential to the administration of the Act that these
determinations be left in the first instance to the National
Labor Regulations Board . . . . When an activity is
arguably subject to §7 or §8 of the Act, the States as well as
the federal courts must defer to the exclusive competence
of the National Labor Relations Board if the danger ot
state interference with National policy is to be averted.
Id. at 244-45 (emphasis added). This Court also emphasized in
Garmon that state regulation would be preempted even as to
conduct which this Court might ultmately conclude did not con-
flict with federal policy:
——
In the absence of the Board’s clear determination that an
activity is neither protected nor prohibited or of compeli-
ing precedent applied to essentially undisputed facts, it is
not for this Court to decide whether such activities are sub-
ject to state jurisdiction . ... The governing consideration
is that fo allow the State to control activities that are poten-
tially subject to federal regulation involves too great a
danger of conflict with national labor policy.
Id. at 246 (emphasis added). Under Garmon, therefore, poten-
tial, rather than actual, conflict is the key test for preemption
under §7 and §8 of the NLRA.
Aubuschon’s complaint is based on a disciplinary notice
which IMS and Van Den Handel were required by contract, and
hence federal labor law,* to issue to the Union. An employer’s
compliance with pre-termination procedures set forth in a col-
lective bargaining agreement is subject to Section 8(a)(5) of the
NLRA, 29 U.S.C. §158(a)(5).. N.L.R.B. v. Amoco Chemicals
Corp., $29 F.2d 427 (Sth Cir. 1976); Redway Carriers, Inc., 274
N.L.R.B. 1359 (1985). Had IMS and Van Den Handel failed to
supply the Notice to the Union, therefore, their failure would
have subjected IMS to an unfair labor practice charge under
§8(a)(5) of the NLRA See N.L.R.B. v. Amoco Chemicals
Corp., 529 F.2d at 431 (employer’s unilateral change in
disciplinary enforcement procedure is an unfair labor practice).
Consequently, the Notice IMS and Van Den Handel issued to
Aubuschon and the Union was in fact (and not just potentially)
subject to §7 and §8 of the NLRA. Accordingly, the order of
the Illinois Supreme Court in this matter conflicts with this
Court’s ruling in Garmon.
Furthermore, the situation presented by this case does not fall
within the narrow exception to Garmon preemption which this
Court recognized in Linn v. United Plant Guard Workers, 383
* See footnote 2.
eee
U.S. 53 (1966). Linn involved a defamation action which arose
out of statements made during a union organizing campaign
and not, as here, a communication required by a collective
bargaining agreement. Linn is thus distinguishable because it
involved a different type of labor dispute and, more important-
ly, because it did not involve publication of statements man-
dated by a collective bargaining agreement and, hence, by
federal law.’ See Hull Central Transport, Inc., 628 F.Supp.
784, 789 (N.D. Ind. 1986). The Illinois Supreme Court’s order
that an action for defamation arising out of an employer’s
publication of a disciplinary notice to a union, as required by a
collective bargaining agreement, survives Garmon preemption,
places state law in conflict with the employer’s federal statutory
and contractual obligation to issue such a disciplinary notice.
Under such circumstances, employers such as IMS may be sub-
ject to a state libel action each time they comply with their
federal statutory and contractual obligation to issue a
disciplinary notice to an employee’s union. Clearly, this situa-
tion upsets ‘‘the balance of power between labor and manage-
ment expressed in our national labor policy.’’ Allis-Chalmers
Corp., 471 U.S. at 212 n.6.
In sum, the order of the Supreme Court of Illinois, allowing
Aubuschon to pursue his defamation claim, runs afoul of two
important principles of federal labor policy under §§7 and 8 of
the NLRA. First, it enables a state court to adjudicte a con-
troversy properly within the exclusive jurisdiction of the Na-
tional Labor Relations Board. Second, it enables state regula-
tion of conduct which is mandated by a collective bargaining
agreement, and in doing so, ‘‘creates potential frustration of na-
tional purposes.’ Garmon, 359 U.S. at 244.
> See footnote 2.
oe
D. A Writ Of Certiorari Should Be Granted Because, As
Illustrated By The Order Of The Illinois Supreme
Court, Important Questions Of Federal Labor Law
Which Should Be Decided By This Court Remain
After This Court’s Decision In Allis-Chalmers And
Lingle.
The source of Aubuschon’s defamation claim — the Contract
provisions requiring IMS to provide the Union with notice of
any reprimand, suspension or discharge — is not an unusual
collective bargaining agreement provision.* Consequently, the
type of preemption and federal labor policy issues raised by
Aubuschon’s defamation claim have occurred in the past and
are likely to recur under a variety of collective bargaining
agreements in a variety of states.’ The reason questions con-
* See footnote 3 and Gregory v. Simon Bros. Inc., 640 F.Supp. 1252
(N.D. Ind. '986). In addition, even if not specifically required by any
provision of a collective bargaining agreement, an employer’s past
practice of instituting discipline, such as providing a union with notice
of any discipline or discharge the employer imposes, can evolve into a
custom which the employer may not unilaterally abandon without
subjecting itself to an unfair labor practice charge and/or an arbitra-
tion proceeding. See NLRB v. Amoco Chemicals Corp., 529 F.2d 427
(Sth Cir. 1976); Coca-Cola Bottling Co., 9 Lab. Arb. (BNA) 197
(1947) (Jacobs, Arb.); see a/so F. Elkouri and E. Elkouri, How Ar-
bitration Works, 444 (4th ed. 1985).
’ The frequency with which these issues are likely to recur is il-
lustrated by the following cursory list of cases dealing with defama-
tion claims brought by bargaining unit employees against their
employers. Newberry v. Pacific Racing Ass’n., 854 F.2d 1142 (9th
Cir. 1988); Strachan v. Union Oil Co., 768 F.2d 703, 704-06 (Sth Cir.
1985); Scott v. General Motors Corp., 645 F.Supp. 914 (E.D. Mo.
1986); Gregory v. Simon Bros. Inc., 640 F.Supp. 1252 (N.D. Ind.
1986); Seid v. Pacific Bell, Inc., 635 F.Supp. 906 (S.D. Cal. 1985);
Green v. Hughes Aircraft Co., 630 F.Supp. 423 (S.D. Cal. 1985); Hull
v. Central Transport, Inc., 628 F.Supp. 784 (N.D. Ind. 1986);
Reynolds Metal Company v. Mays, 516 So.2d 517 (Ala. 1987),
vacated and remanded, _____ US. , 100 L.Ed.2d $15 (1988);
Nelson v. Lapeyrouse Grain Corp., No. 87-161, slip op. (Ala. Sept.
30, 1988) (LEXIS, States library, Ala. file); Cokley v. Pacific Gas and
Electric Co., 119 L.R.R.M. (BNA) 3454, 3457-58 (N.D. Cal. 1984);
Krasinski v. United Parcel Service, 124 Ill. 2d 483, 530 N.E.2d 468
(1988).
es
— :
tinue to arise about the preemptive effect of federal labor laws
on state libel and defamation claims is because this Court’s rul-
ings in Allis-Chalmers Corp. and Lingle do not provide suffi-
cient guidance to federal and state courts on how to resolve
these questions. Compare, for example, the decisions of state
supreme courts upholding a state law defamation action in this
case, in Krasinski, 530 N.E.2d 468, and in Nelson v. Lapeyrouse
Grain Corp., No. 87-161, slip op. (Ala. Sept. 30, 1988), with the
federal court decisions finding preemption of state defamation
claims in Strachan, 768 F.2d at 705-06, Hul/, 628 F.Supp. at 789
and Gregory, 640 F.Supp. at 1255-56. This Court should grant
a writ of certiorari herein to ensure that federal and state courts
have the guidance needed to enforce federal labor policy in a
uniform manner. This case is a particularly suitable case for
this purpose because, unlike many of the previous defamation
cases in which the issue of preemption was raised, both the
allegedly defamatory statement and the alleged publication were
specifically required by the applicable collective bargaining
agreement.
Furthermore, if this Court fails to review the order of the Il-
linois Supreme Court in this matter, there could be a significant
detrimental impact on labor-management relations in this coun-
try. Specifically, under the Iliinois Supreme Court’s order in
this matter, employers who are parties to a collective bargaining
agreemeni which requires the employer to advise the union,
oraily or in writing, when and why any bargaining-unit
employee is disciplined or discharged, are placed in the
untenable position of having to choose among the following
three undesirable options each time the need for discipline, in-
cluding discharge, arises:
(1) the employer may impose no discipline even though it
considers an employee’s conduct to be improper, harmful i
or dangerous;
(2) the employer may impose discipline for improper con-
duct, provide the contractually required notice to the
—,;
Union, and thereby become subject to a state defamation
claim for the contents of the contractually required notice;
or
(3) the employer may impose discipline for improper con-
duct, breach its contractual obligation to provide the union
with notice of the discipline, and thereby become subject
to an unfair labor practice charge before the National
Labor Relations Board (‘‘NLRB’’), suit under §301 of the
LMRA and/or an arbitration proceeding under the ap-
plicable collective bargaining agreement.‘
The first of these options is undesirable because it enables
state law to define what rights and authority an employer may
have or may safely exercise in any collective bargaining situa-
tion. This first option also effectively restructures the manage-
ment of business in this country. The second alternative is
undesirable because: (a) it permits an employee to seek redress
for the same alleged wrong in both a contractually required ar-
bitration proceeding and in court, (b) it substantially shifts the
economics and emotions in any collective bargaining situation,
and (c) it is likely significantly to affect an employer’s ability to
locate competent employees who are willing to carry out the
employer’s contractual obligations because they too, like Van
Den Handel, may be civilly sued for fulfilling their employer’s
contractual responsibilities. Finally, the third option is
undesirable because it trades litigation in one forum for litiga-
tion in up to three other forums. Moreover, this last option
completely erodes the possibility of effective and efficient ‘‘in-
dustrial self-government’”’ through arbitration because a Union
cannot possibly prepare to defend a disciplined or discharged
* Of course the one advantage of the third option is that an absolute
privilege is likely to attach to any statement the employer and its
agents make before the NLRB, a court in a §301 suit, or an arbitrator.
See Restatement (Second) of Torts §592A (1977).
oo
employee if the union has never been advised of the reason for
the discipline or discharge.’
In sum, there exists a great deal of confusion among federal
and state courts regarding the federal labor policy towards state
defamation claims in the context of a collective bargaining rela-
tionship. The Illinois Supreme Court’s order adds to this con-
fusion and also threatens the stability and goal of the existing
federal labor law scheme. Accordingly, this Court should issue
a writ of certiorari to review the order of the Supreme Court of
Illinois in this matter.
CONCLUSION
For each of the foregoing reasons, International Mill Service
and Thomas Van Den Handel respectfully request that this
Court grant the writ of certiorari.
Respectfully submitted,
Ira L. Blank
Counsel of Record
Laura J. Kipnis
POPKIN & STERN
8182 Maryland Avenue
15th Floor
St. Louis, Missouri 63105
(314) 862-0900
Dated March 8, 1989
* Similarly, because the NLRB and this Court have recognized the
right of unionized employees to have a union representative present
during any investigative interview which the employee reasonably
believes may lead to disciplinary action (NLRB v. Weingarten, Inc.,
420 U.S. 251 (1975)), this right, combined with the possibility of a
state tort claim of defamation, may make it impossible for employers
even to investigate suspected improper employee misconduct without
subjecting themselves to state defamation claims. See Strachan v.
Union Oil Co., 768 F.2d 703, 706 (Sth Cir. 1985).
APPENDIX PART A
Illinois Supreme Court
Juleann Hornyak, Clerk
Supreme Court Building
Springfield, Ill. 62706
(217) 782-2035
December 8, 1988
Mr. Ira L. Blank
Popkin and Stern
8182 Maryland Ave. 15th Floor
St. Louis, Missouri 63105
No. 67186 — James Aubuschon, petitioner, v. Interna-
tional Mill Service, et al., respondents. Leave
to appeal, Appellate Court, Fifth District.
The Supreme Court today ALLOWED the petition for leave
to appeal in the above entitled cause and entered the enclosed
supervisory order.
The mandate of this Court will issue to the Appellate Court
on December 30, 1988.
NO. 67186 — SUPERVISORY ORDER
In the exercise of this Court’s supervisory jurisdiction, the
judgment of the Appellate Court, Fifth District, No.
5-87-0216, is REVERSED and the order of the Circuit
Court of Madison County, No. 84L272, denying defen-
dants’ motion for summary reversal is AFFIRMED.
(Krasinski v. United Parcel Service (Oct. 20, 1988), No.
65439.) This cause is remanded to the Circuit Court of
Madison County for further proceedings.
— <.
APPENDIX PART B
No. 5-87-0216
In The Appellate Court of Lilincis
Fifth District
James Aubuschon,
Plaintiff-Appellee,
v.
International Mill Service and
Thomas Van Den Handel,
Defendants-Appellants.
Appeal from the Circuit Court of Madison County
Honorable George J. Moran, Jr., Judge Presiding.
Filed: April 27, 1988
MR. JUSTICE KARNS delivered the opinion of the court:
James Aubuschon, plaintiff, began working for International
Mill Service (IMS) in June of 1979. He was a member of Local
2762 of the United Steelworkers of America (the Union) which,
in turn, was party to a collective-bargaining agreement with
IMS. Under this agreement, IMS agreed to replace its
employees’ personal tools used in the performance of their
specific jobs which were lost or missing at the job site unless
there was an abuse of the replacement provision.
During the summer of 1980, Aubuschon reported his tools as
being stolen, and IMS replaced the tools in accordance with the
collective-bargaining agreement. In 1981, Aubuschon again
reported his tools as being stolen, and again IMS replaced the
tools. From February to August of 1982, Aubuschon was off
work. When he returned to work in August, his tools were not
in his locker. Aubuschon requested a new set of tools, but IMS
refused to replace the tools a third time. Aubuschon subse-
quently filed a written grievance in accordance with the
on
collective-bargaining agreement pertaining to the replacement
of his tools. IMS ultimately agreed to replace the missing tools
necessary to his job. IMS informed Aubuschon, however, that
they would no longer replace his missing tools and that he would
have to accept and use the specific tools supplied. Aubuschon,
in turn, asked for invoices for the tools to insure them.
On May 13, 1983, after IMS furnished Aubuschon with
replacement tools and the accompanying invoices, Aubuschon
took the tools and invoices to the supplier, National Auto Supp-
ly. According to IMS, Aubuschon attempted to turn the tools
in for money. Aubuschon claims he only wanted to exchange
them for different tools. A clerk at National Auto Supply
refused to accept the tools after talking to IMS.
Approximately 11 days later, Aubuschon’s superintendent,
also a defendant in this matter, met with Aubuschon and the
union president to give them copies of a notice of discipline.
The notice stated that Aubuschon was suspended five days pen-
ding discharge for attempting to sell back the tools. Aubuschon
was discharged on May 31, 1983. Again, in accordance with the
provisions of the collective-bargaining agreement, Aubuschon
filed a written grievance protesting his discharge. The grievance
was submitted to arbitration, whereupon the arbitrator issued
his decision, reinstating Aubuschon without back pay. Accor-
ding to the collective-bargaining agreement, decisions of the ar-
bitrator are final and binding upon IMS, the union and all
employees concerned.
Upon being reinstated, Aubuschon filed this action for
defamation in the circuit court of Madison County based upon
the alleged publication of his disciplinary action notice. IMS
and the superintendent filed a motion for summary judgment
claiming preemption under federal labor law. The circuit court
denied the motion from which defendants now appeal. We
reverse, finding that Aubuschon’s cause of action for defama-
tion is preempted under federal labor law by section 301 of the
Labor Management Relations Act (LMRA), 29 U.S.C. § 185.
ie een
By virtue of the supremacy clause of article VI of the Federal
Constitution (U.S. Const., art. VI, cl. 2), federal law, in most
instances, overrides or preempts state law on the same subject
matter. (Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202,
208, 85 L.Ed.2d 206, 213, 105 S.Ct. 1904, 1909; Bartley v.
University Asphalt Co. (1986), 111 Ill. 2d 318, 327, 489 N.E.2d
1367, 1371.) Section 301 of the LMRA vests jurisdiction in the
federal courts for actions alleging violations of labor contract
provisions or breaches of collective-bargaining agreements.
(Allis-Chalmers, 471 U.S. at 210, 85 L.Ed.2d at 215, 105 S.Ct.
at 1911; Green v. Hughes Aircraft Co. (S.D. Cal. 1985), 630
F.Supp. 423, 426.) Therefore, any state action, whether it be in
tort or contract, alleging such violations are preempted.
(Bartley, 111 Ill. 2d at 328, 489 N.E.2d at 1371.) But the scope
of preemption under section 301 is not limited solely to viola-
tions and breaches. Any state law which attempts to define the
meaning of a term in a iabor contract or the relationship treated
by a collective-bargaining agreement necessarily is preempted
also. (Allis-Chalmers, 471 U.S. at 210-11, 85 L.Ed.2d at 215,
105 S.Ct. at 1911.}-Censequently, when resolution of a cause of
action is substantially dependent upon analysis of the terms or
upon the interpretation of a labor agreement, the claim is
preempted. (Lingle v. Norge Division of Magic Chef, Inc. (7th
Cir. 1987), 823 F.2d 1031, 1042, cert. granted (1987), ___ U.S.
___, 98 L.Ed. 2d 185, 108 S.Ct. 226; Bartley, 111 Ill. 2d at
330-32, 489 N.E.2d at 1372-73.) The issue before us then is
whether Aubuschon’s claim is sufficiently independent of the
collective-bargaining agreement to withstand the preemptive
force of section 301.
Aubuschon argues the notice of discipline suspending him
pending discharge was defamatory and therefore within the pur-
view of state tort law. What Aubuschon fails to recognize is
that this notice and its publication to his union specifically were
contemplated by a collective-bargaining agreement and
grievance procedure. The statements were directly related to his
suspension and discharge and specifically invoked articles of the
—
collective-bargaining agreement. (See Suffel v. Manville
Building Materials (N.D. Ohio February 24, 1986), No.
C85-7650, slip op. at 11.) They not only intertwined with IMS’
right to discipline for proper cause and with the contractual re-
quirement that statements of discipline be furnished to and in
the presence of the union, but also with the contractual require-
ment that employees abide by IMS plant rules and with labor
and management’s right to resolve disputes openly in accor-
dance with the collective-bargaining agreement. (See Green,
630 F.Supp. at 427.) Moreover, the statements also intertwined
with the agreement between IMS and the union settling
Aubuschon’s grievance concerning replacement of missing
tools. As such, Aubuschon’s claim necessarily arises out of the
collective-bargaining agreement and therefore is preempted. See
Scott v. Machinists Automotive Trades District Lodge No. 190
(9th Cir. 1987), 827 F.2d 589, 594; Stallcop v. Kaiser Founda-
tion Hospitals (9th Cir. 1987), 820 F.2d 1044, 1049, cert. denied
(1987), _.__ U.S. ___, 98 L.Ed.2d 502, 108 S.Ct. 251;
Strachan v. Union Oil Co. (Sth Cir. 1985), 768 F.2d 703, 706;
Peffley v. Durakool, Inc. (N.D. Ind. 1987), 669 F.Supp. 1453,
1462. See also Hasten v. Phillips Petroleum Co. (10th Cir.
1981), 640 F.2d 274, 276-78 (discharge later required by agree-
ment privileged). Cf. Tellez v. Pacific Gas & Electric Co. (9th
Cir. 1987), 817 F.2d 536, 538, cert. denied (1987), ____ U.S.
___., 98 L.Ed.2d 209, 108 S.Ct. 504.
Regardless of how Aubuschon characterizes his cause of ac-
tion, resolution is dependent upon analysis of the collective-
bargaining agreement between IMS and the union, as well as
upon the agreement settling his grievance regarding missing
tools. If Aubuschon were allowed to proceed with state tort
claims for defamation in this instance, grievance arbitration
procedures would be rendered meaningless and the entire
federal framework of coliective-bargaining would be undermin-
ed. (See Allis-Chalmers, 471 U.S. at 219, 85 L.Ed.2d at 220,
105 S.Ct. at 1915; Lingle, 823 F.2d at 1046-47; Green, 630
F.Supp. at 427; Perkins v. Pepsi-Cola General Bottlers, Inc. (2d
—
Dist. 1987), 158 Ill.App.3d 893, 899, 511 N.E.2d 901, 905.) To
hold that Aubuschon’s claims are sufficiently independent of
the collective-bargaining agreement would elevate form over
substance and allow him to evade the requirements of federal
labor law. Allis-Chalmers, 471 U.S. at 211, 85 L.Ed.2d at 215,
105 S.Ct. at 191.
Aubuschon points out three cases, Gonzalez v. Prestress
Engineering Corp. (1986), 115 Ill.2d 1, 503 N.E.2d 308, cert.
denied (1987), 483 U.S. ___, 97 L.Ed.2d 779, 107 S.Ct. 3248;
Krasinski v. United Parcel Service, Inc. (3d Dist. 1987), 155
Ill.App.3d 831, 508 N.E.2d 1105 (petition for leave to appeal
granted); and Fisher v. Illinois Office Supply Co. (3d Dist.
1984), 130 Ill.App.3d 996, 474 N.E.2d 1263, which arguably
support his position. These cases, however, are distinguisable.
Gonzalez v. Prestress Engineering Corp. focuses on two
employees who alleged that they were discharged in retaliation
for filing workers’ compensation claims. Because the resolution
of their claims did not depend upon an interpretation of a labor
agreement and because the graveman of their claims arose out
of an alleged violation of clearly mandated public policy, their
claims were not preempted by section 301. (115 Ill.2d at 9-12,
503 N.E.2d at 311-13.) Here, however, resolution of
Aubuschon’s claim is substantially dependent upon interpreta-
tion of the terms of a collective-bargaining agreement and his
cause of action does not involve a discharge in violation of
clearly mandated public policy. The reasoning of Gonzalez
therefore is inapplicable to the instant situation.
The third district in both Fisher and Krasinski, on the other
hand, has determined that malicious defamation claims are not
preempted by federal labor law. Both cases, however, involved
instances of actual malice outside the scope of the collective-
bargaining agreements. Neither case involved claims in which
resolution was substantially dependent upon analysis of the
terms of the respective labor agreements, and, as a result, also
=
are inapposite to the cause of action before us. We choose not
to follow the reasoning in either Fisher or Krasinski, finding the
reasoning of cases such as Green to be more in line with the
Supreme Court’s decision in Allis-Chalmers and with the
general policies behind preemption in connection with
collective-bargaining agreements.
Because of our finding Aubuschon’s defamation claim to be
preempted under section 301 of the LMRA, we need not address
the issue of preemption under sections 7 and 8 of the National
Labor Relations Act, 29 U.S.C. §§ 157, 158. Suffice it to say,
we do not believe Aubuschon’s cause of action falls within the
narrow exceptions to preemption found in Linn v. United Plant
Guard Workers (1966), 383 U.S. 53, 15 L.Ed.2d 582, 86 S.Ct.
657 or in Farmer vy. United Brotherhood of Carpenters &
Joiners (1977), 430 U.S. 290, 51 L.Ed.2d 338, 97 S.Ct. 1056. See
Green, 630 F.Supp. at 427 n.1.
For the aforementioned reasons, we find that Aubuschon’s
cause of action against IMS and his superintendent is preempted
by federal labor law. The trial court therefore lacked jurisdic-
tion over the subject matter of this action (see Sagen v. Jewel
Companies (2d Dist. 1986), 148 Ill. App.3d 447, 450, 499 N.E.2d
662, 664), and should have granted the motion for summary
judgment. We therefore reverse the order of the circuit court of
Madison County and remand this cause for entry of summary
judgment in favor of defendants.
REVERSED AND REMANDED WITH DIRECTIONS.
HARRISON, P.J. AND WELCH, J., concur.
— =
APPENDIX PART C
In The Circuit Court
Third Judicial Circuit
Madison County, Illinois
James Aubuschon,
Plaintiff,
Vv.
International Mill Service, et al.,
Defendants.
No. 84-L-272
ORDER
Filed: March 10, 1987
Willard V. Portell
Clerk of Circuit Court
Third Judicial Circuit
Madison County, Illinois
Defendants’ motion for summary judgment as amended
and/or to issue an order pursuant to Ill.Sup.Ct. Rule 308, ch.
110A, 4308, Ill.Rev.Stat., was heard and submitted on February
27, 1987.
The Court hereby orders as follows:
1. Defendants’ motion for summary judgment as amended is
denied.
2. Pursuant to Ill.Sup.Ct. Rule 308(a), ch. 110A, 4308,
Ill.Rev.Stat., the Court finds that this order involves a question
of law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation.
The question of law is as follows: Whether a bargaining-unit
employees’s defamation action against his employer is preemp-
———
—.
ted by federal labor law under Section 301 of the Labor
Management Relations Act, 29 U.S.C. § 185, or Sections 7 and
8 of the National Labor Relations Act, 29 U.S.C. §§157, 158,
where the action is based upon a notice of discipline issued by
the employer stating the reason for the employee's suspension,
the conduct which resulted in the discipline was alleged by the
employer to violate employer work rules established pursuant to
the collective-bargaining agreement and to relate to the
collective-bargaining agreement and the settlement of a
grievance, and the governing collective bargaining agreement
contained provisions relating to grievance resolution and
employee discipline. |
3. Pursuant to Ill.Sup.Ct. Rule 308(e), ch. 110A, 4308,
Ill.Rev.Stat., any application for permission/leave to appeal or
the granting thereof shall stay all proceedings in this court.
SO ORDERED:
Date: 3-10-87
/s/ George J. Moran, Circuit Judge
Copies to counsel of record:
John Hopkins, Hopkins & Bilbrey, P.C.
1412 20th Street, P.O. Box 731,
Granite City, Illinois 62040
attorney for Plaintiff.
Ira L. Blank, Popkin & Stern
8182 Maryland Avenue, 15th Floor,
St. Louis, Missouri 63105
attorney for Defendants.
Robert W. Wilson, Evans & Dixon
P.O. Box 566,
Edwardsville, Illinois 62025
attorney for Defendants.
— A-10 —
APPENDIX PART D
State of Illinois
Supreme Court Clerk
Supreme Court Building
Springfield 62706
January il, 1989
Mr. Ira L. Blank Mr. Robert W. Wilson
Popkin & Stern Evans & Dixon
8182 Maryland Ave., 15th Fl. P.O. Box 566
St. Louis, MO 63105 Edwardsville, IL 62025
THE COURT HAS TODAY ENTERED THE FOLLOWING
ORDER IN THE CASE OF:
No. 67186 — James Aubuschon, petitioner, v. International
Mill Service, et al., respondents.
Motion by respondents for reconsideration of
this Court’s supervisory order entered December
8, 1988. Motion denied. The mandate of this
Court issued today.
JH: as
cc: Mr. John Hopkins
— A-ll —
APPENDIX PART E
In The Supreme Court of Illinois
No. 67186
Appeal from Appellate Court
Fifth District
AC5-87-0216
James Aubuschon,
Petitioner,
V.
International Mill Service, et al.,
Respondents.
ORDER
Filed: February 1, 1989
This matter has come for consideration upon the motion of
respondents to recall and stay the mandate of this Court pen-
ding appeal or application for certiorari in the United States
Supreme Court.
IT IS ORDERED that the mandate of this Court in the above
cause is recalled and stayed pending the filing of a notice of ap-
peal or an application for certiorari or the expiration of the
period within which said application or notice may be filed. If
certiorari is applied for or notice of appeal filed, the mandate of
this Court shall, upon proof of such filing being made by af-
fidavit filed with the clerk of this Court, be further stayed pen-
ding resolution by the United States Supreme Court of such ap-
plication or appeal. If no such affidavit is filed, the mandate
shall, without further order, issue upon the expiration of the
time within which appeal or certiorari may be sought.
/s/ Horace L. Calvo, Justice
— A-12 —
APPENDIX PART F
§ 185. Suits by and against labor organizations
Venue, amount, and citizenship
(a) Suits for violation of contracts between an employer and a
labor organization representing employees in an industry affec-
ting commerce as defined in this chapter, or between any such
labor organizations, may be brought in any district court of the
United States having jurisdiction of the parties, without respect
to the amount in controversy or without regard to the citizen-
ship of the parties.
Responsibility for acts of agent; entity for purposes of suit; en-
forcement of money judgments
(b) Any labor organization which represents employees in an
industry affecting commerce as defined in this chapter and any
employer whose activities affect commerce as defined in this
chapter shall be bound by the acts of its agents. Any such labor
organization may sue or be sued as an entity and in behalf of the
employees whom it represents in the courts of the United States.
Any money judgment against a labor organization in a district
court of the United States shall be enforceabie only against the
organization as an entity and against its assets, and shall not be
enforceable against any individual member or his assets.
Jurisdiction
(c) For the purposes of actions and proceedings by or against
labor organizations in the district courts of the United States,
district courts shall be deemed to have jurisdiction of a labor
organization (1) in the district in which such organization main-
tains its principal office, or (2) in any district in which its duly
authorized officers or agents are engaged in representing or ac-
ting for employee members.
— A-13 —
Service of process
(d) The service of summons, subpena, or other legal process
of any court of the United States upon an officer or agent of a
labor organization, in his capacity as such, shall constitute ser-
vice upon the labor organization.
Determination of question of agency
(e) For the purposes of this section, in determining whether
any person is acting as an ‘‘agent’’ of another person so as to
make such other person responsible for his acts, the question of
whether the specific acts performed were actually authorized or
subsequently ratified shall not be controlling.
§ 157. Right of employees as to organization, collective
bargaining, etc.
Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, and shall also have the
right to refrain from any or all of such activities except to the ex-
tent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as authorized in section 158(a)(3) of this title.
§ 158. | Unfair labor practices
(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this title;
(2) to dominate or interfere with the formation or ad-
ministration of any labor organization or contribute finan-
cial or other support to it: Provided, That subject to rules
and regulations made and published by the Board pursuant
to section 156 of this title, an employer shall not be pro-
es
a hel
hibited from permitting employees to confer with him dur-
ing working hours without loss of time or pay;
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor
organization: Provided, That nothing in this subchapter,
or in any other statute of the United States, shall preclude
an employer from making an agreement with a labor
organization (not established, maintained, or assisted by
any action defined in this subsection as an unfair labor
practice) to require as a condition of employment member-
ship therein on or after the thirtieth day following the
beginning of such employment or the effective date of such
agreement, whichever is the later, (i) if such labor
organization is che representative of the employees as pro-
vided in section i59(a) of this title, in the appropriate
collective-bargaining unit covered by such agreement when
made, and (ii) unless following an election held as provided
in section 159(e) of this title within one year preceding the
effective date of such agreement, the Board shall have cer-
tified that at least a majority of the employees eligible to
vote in such election have voted to rescind the authority of
such labor organization to make such an agreement: Pro-
vided further, That no employer shall justify any
discrimination against an employee for nonmembership in
a labor organization (A) if he has reasonable grounds for
believing that such membership was not available to the
employee on the same terms and conditions generally ap-
plicable to other members, or (B) if he has reasonable
grounds for believing that membership was denied or ter-
minated for reasons other than the failure of the employee
to tender the periodic dues and the initiation fees uniform-
ly required as a condition of acquiring or retaining
membership;
= Mls
(4) to discharge or otherwise discriminate against an
employee because he has filed charges or given testimony
under this subchapter;
(5) to refuse to bargain collectively with the represen-
tatives of his employees, subject to the provisions of sec-
tion 159(a) of this title.
(b) It shall be an unfair labor practice for a labor organization
or its agents—
(1) to restrain or coerce (A) empioyees in the exercise of
the rights guaranteed in section 157 of this title: Provided,
That this paragraph shall not impair the right of a labor
organization to prescribe its own rules with respect to the
acquisition or retention of membership therein; or (B) an
employer in the selection of his representatives for the pur-
poses of collective bargaining or the adjustment of
grievances;
(2) to cause or attempt to cause an employer to
discriminate against an employee in violation of subsection
(a) (3) of this section or to discriminate against an
employee with respect to whom membership in such
organization has been denied or terminated on some
ground other than his failure to tender the periodic dues
and the initiation fees uniformly required as a condition of
acquiring or retaining membership;
(3) to refuse to bargain collectively with an employer,
provided it is the representative of his employees subject to
the provisions of section 159(a) of this title;
(4) (i) to engage in, or to induce or encourage any in-
dividuai employed by any person engaged in commerce or
in an industry affecting commerce to engage in, a strike or
a refusal in the course of his employment to use, manufac-
ture, process, transport, or otherwise handle or work on
— A-16 —
any goods, articles, materials, or commodities or to per-
form any services; or (ii) to threaten, coerce, or restrain
any person engaged in commerce or in an industry affec-
ting commerce, where in either case an object thereof is—
(A) forcing or requiring any employer or self-
employed person to join any labor or employer
organization or to enter into any agreement which is
prohibited by subsection (e) of this section;
(B) forcing or requiring any person to cease using,
selling, handling, transporting, or otherwise dealing
in the products of any other producer, processor, or
manufacturer, or to cease doing business with any
other person, or forcing or requiring any other
employer to recognize or bargain with a labor
organization as the representative of his employees
unless such labor organization has been certified as
the representative of such employees under the provi-
sions of section 159 of this title: Provided, That
nothing contained in this clause (B) shall be construed
to make unlawful, where not otherwise unlawful, any
primary strike or primary picketing;
(C) forcing or requiring any employer to recognize
or bargain with a particuiar labor organization as the
representative of his employees if another labor
organization has been certified as the representative
of such employees under the provisions of section 159
of this title;
(D) forcing or requiring any employer to assigi
particular work to employees in a particular labor
organization or in a particular trade, craft, or class
rather than to employees in another labor organiza-
tion or in another trade, craft, or class, unless such
employer is failing to conform to an order or cer-
tification of the Board determining the bargaining
_tepresentative for employees performing such work:
Sy oe
Provided, That nothing contained in this subsection shall
be construed to make unlawful a refusal by any person to
enter upon the premises of any employer (other than his
own employer), if the employees of such employer are
engaged in a strike ratified or approved by a representative
of such employees whom such employer is required to
recognize under this subchapter: Provided further, That
for the purposes of this paragraph (4) only, nothing con-
tained in such paragraph shall be construed to prohibit
publicity, other than picketing, for the purpose of truthful-
ly advising the public, including consumers and members
of a labor organization, that a product or products are
produced by an employer with whom the labor organiza-
tion has a primary dispute and are distributed by another
employer, as long as such publicity does not have an effect
of inducing any individual employed by any person other
than the primary employer in the course of his employment
to refuse to pick up, deliver, or transport any goods, or not
to perform any services, at the establishment of the
employer engaged in such distribution;
(5) to require of employees covered by an agreement
authorized under subsection (a)(3) of this section the pay-
ment, as a condition precedent to becoming a member of
such organization, of a fee in an amount which the Board
finds excessive or discriminatory under all the cir-
cumstances. In making such a finding, the Board shall
consider, among other relevant factors, the practices and
customs of labor organizations in the particular industry,
and the wages currently paid to the employees affected;
(6) to cause or attempt to cause an employer to pay ox
deliver or agree to pay or deliver any money or any other
thing of value, in the nature of an exaction, for services
which are not performed or not to be performed; and
(7) to picket or cause to be picketed, or threaten to
picket or cause to be picketed, any employer where an ob-
— A-18 —
ject thereof is forcing or requiring an employer to
recognize or bargain with a labor organization as the
representative of his employees, or forcing or requiring the
employees of an employer to accept or select such labor
organization as their collective bargaining representative,
unless such labor organization is currently certified as the
representative of such employees:
(A) where the employer has lawfully recognized in
accordance with this subchapter any other labor
organization and a question concerning representa-
tion may not appropriately be raised under section
159(c) of this title,
(B) where within the preceding twelve months a
valid election under section 159(c) of this title has
been conducted, or
(C) where such picketing has been conducted
without a petition under section 159(c) of this title be-
ing filed within a reasonable period of time not to ex-
ceed thirty days from the commencement of such
picketing: Provided, That when such a petition has
been filed the Board shall forthwith, without regard
to the provisions of section 159(c) (1) of this title or
the absence of a showing of a substantial interest on
the part of the labor organization, direct an election
in such unit as the Board finds to be appropriate and
shall certify the results thereof: Provided further,
That nothing in this subparagraph (C) shall be con-
strued to prohibit any picketing or other publicity for
the purpose of truthfully advising the public (in-
cluding consumers) that an employer does not employ
members of, or have a contract with, a labor
organization, unless an effect of such picketing is to
induce any individual employed by any other person
in the course of his employment, not to pick up,
— oe
deliver or transport any goods or not to perform any
services.
Nothing in this paragraph (7) shall be construed to per-
mit any act which would otherwise be an unfair labor prac-
tice under this subsection.
(c) The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair
labor practice under any of the provisions of this subchapter, if
such expression contains no threat of reprisal or force or pro-
mise of benefit.
(d) For the purposes of this section, to bargain collectively is
the performance of the mutual obligation of the employer and
the representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and other
terms and conditions of employment, or the negotiation of an
agreement, or any question arising thereunder, and the execu-
tion of a written contract incorporating any agreement reached
if requested by either party, but such obligation does not com-
pel either party to agree to a proposal! or require the making of a
concession: Provided, That where there is in effect a collective-
bargaining contract covering employees in an industry affecting
commerce, the duty to bargain collectively shall also mean that
no party to such contract shall terminate or modify such con-
tract, unless the party desiring such termination or modifica-
tion—
(1) serves a written notice upon the other party to the
contract of the proposed termination or modification sixty
days prior to the expiration date thereof, or in the event
such contract contains no expiration date, sixty days prior
to the time it is proposed to make such termination or
modification;
oo
(2) offers to meet and confer with the other party for the
purpose of negotiating a new contract or a contract con-
taining the proposed modifications;
(3) notifies the Federal Mediation and Conciliation Ser-
vice within thirty days after such notice of the existence of
a dispute, and simultaneously therewith notifies any State
or Territorial agency established to mediate and conciliate
disputes within the State or Territory where the dispute oc-
curred, provided no agreement has been reached by that
time; and
(4) continues in full force and effect, without resorting
to strike or lock-out, all the terms and conditions of the ex-
isting contract for a period of sixty days after such notice is
given or until the expiration date of such contract,
whichever occurs later:
The duties imposed upon employers, employees, and iabor
organizations by paragraphs (2) to (4) of this subsection shall
become inapplicable upon an intervening certification of the
Board, under which the labor organization or individual, which
is a party to the contract, has been superseded as or ceased to be
the representative of the employees subject to the provisions of
section 159(a) of this title, and the duties so imposed shall not be
construed as requiring either party to discuss or agree to any
modification of the terms and conditions contained in a con-
tract for a fixed period, if such modification is to become effec-
tive before such terms and conditions can be reopened under the
provisions of the contract. Any employee who engages in a
strike within any notice period specified in this subsection, or
who engages in any strike within the appropriate period
specified in subsection (g) of this section, shall lose his status as
an employee of the employer engaged in the particular labor
dispute, for the purposes of sections 158, 159 and 160 of this ti-
tle, but such loss of status for such employee shall terminate if
and when he is reemployed by such employer. Whenever the
— A-21 —
collective bargaining involves employees of a health care institu-
tion, the provisions of this subsection shall be modified as
follows:
(A) The notice of paragraph (1) of this subsection shall
be ninety days; the notice of paragraph (3) of this subsec-
tion shall be sixty days; and the contract period of
paragraph (4) of this subsection shall be ninety days.
(B) Where the bargaining is for an initial agreement
following certification or recognition, at least thirty days’
notice of the existence of a dispute shall be given by the
labor organization to the agencies set forth in paragraph
(3) of this subsection.
(C) After notice is given to the Federal Mediation and
Conciliation Service under either clause (A) or (B) of this
sentence, the Service shall promptly communicate with the
parties and use its best efforts, by mediation and concilia-
tion, to bring them to agreement. The parties shall par-
ticipate fully and promptly in such meetings as may be
undertaken by the Service for the purpose of aiding in a
settlement of the dispute.
(e) It shall be an unfair labor practice for any labor organiza-
tion and any employer to enter into any contract or agreement,
express or implied, whereby such employer ceases or refrains or
agrees to cease or refrain from handling, using, selling,
transporting or otherwise dealing in any of the products of any
other employer, or to cease doing business with any other per-
son, and any contract or agreement entered into heretofore or
hereafter containing such an agreement shall be to such extent
unenforcible and void: Provided, That nothing in this subsec-
tion shall apply to an agreement between a labor organization
and an employer in the construction industry relating to the
contracting or subcontracting of work to be done at the site of
the construction, alteration, painting, or repair of a building,
structure, or other work: Provided further, That for the pur-
—
poses of this subsection and subsection (b)(4)(B) of this section
the terms ‘‘any employer’’, ‘‘any person engaged in commerce
or an industry affecting commerce’’, and ‘‘any person’’ when
used in relation to the terms ‘‘any other producer, processor, or
manufacturer’’, ‘‘any other employer’’, or ‘‘any other person’’
shall not include persons in the relation of a jobber, manufac-
turer, contractor, or subcontractor working on the goods or
premises of the jobber or manufacturer or performing parts of
an integrated process of production in the apparel and clothing
industry: Provided further, That nothing in this subchapter
shall prohibit the enforcement of any agreement which is within
the foregoing exception.
(f) It shall not be an unfair labor practice under subsections
(a) and (b) of this section for an employer engaged primarily in
the building and construction industry to make an agreement
covering employees engaged (or who, upon their employment,
will be engaged) in the building and construction industry with a
labor organization of which building and _ construction
employees are members (not established, maintained, or
assisted by any action defined in subsection (a) of this section as
an unfair labor practice) because (1) the majority status of such
labor organization has not been established under the provisions
of section 159 of this title prior to the making of such agree-
ment, or (2) such agreement requires as a condition of employ-
ment, membership in such labor organization after the seventh
day following the beginning of such employment or the effective
date of the agreement, whichever is later, or (3) such agreement
requires the employer to notify such labor organization of op-
portunities for employment with such employer, or gives such
labor organization an opportunity to refer qualified applicants
for such employment, or (4) such agreement specifies minimum
training or experience qualifications for employment or pro-
vides for priority in opportunities for employment based upon
length of service with such employer, in the industry or in the
particular geographical area: Provided, That nothing in this
subsection shall set aside the final proviso to subsection (a) (3)
ae <<.
of this section: Provided further, That any agreement which
would be invalid, but for clause (1) of this subsection, shall not
be a bar to a petition filed pursuant to section 159(c) or 159(e) of
this title.
(g) A labor organization before engaging in any strike,
picketing, or other concerted refusal to work at any health care
institution shall, not less than ten days prior to such action,
notify the institution in writing and the Federal Mediation and
Conciliation Service of that intention, except that in the case of
bargaining for an initial agreement following certification or
recognition the notice required by this subsection shall not be
given until the expiration of the period specified in clause (B) of
the last sentence of subsection (d) of this section. The notice
shall state the date and time that such action will commence.
The notice, once given, may be extended by the written agree-
ment of both parties.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.