Opposition Brief — Westvaco Corp. v. Sweeney

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} Supreme Court, U3,

FILED

ey,

No. 90-1727 JUL 15 i991"

GRICE OF TIE CLERK

In the

Supreme Court of the United States

OcTOBER TERM, 1990

WESTVACO COMPANY, RICHARD LAFFARGUE

AND LORENZO SANCHEZ,

PETITIONERS,

DOLORES SWEENEY,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

CHARLES M. BURNIM

508 Donahue Building

Beacon Hill

41 Temple Street

Boston, Massachusetts 02114

(617) 573-8614

Counsel of Record for Respondent

BATEMAN A SLATM. IN MA TON MASSAC HEL SETTS

STATEMENT OF THE CASE ...+ + « «»

SUMMARY OF ARGUMENT .... ++ « «

REASONS FOR NOT GRANTING THE WRIT .

ARGUMENT . * * * * * *. . > . * * .

II.

Iil.

THE NATIONAL LABOR POLICY FA-

VORING GRIEVANCE~ARBITRATION

Pages:

>. 1

° 11

° 16

RESOLUTION OF LABOR DISPUTES IS

NOT IMPLICATED, MUCH LESS

THREATENED, BY THE FIRST

CIRCUIT'S DECISION. oe oe

EE ee eee ee

THIS CASE DOES NOT PRESENT THE

ISSUE SOUGHT TO BE REVIEWED IN

THE CLEAR AND UNEQUIVOCAL MAN-

NER NECESSARY FOR CERTIORARI

REVIEW. «© © © © © © © © © ©

THIS CASE IS NOT APPROPRIATE

FOR CERTIORARI REVIEW AS THE

JUDGMENT IS SUPPORTABLE ON AL-

TERNATIVE GROUNDS. ..... .

(1) The Claim Challenging

Defendants’ Conduct Was

Not Pre-empted. .....

(2) Dolores Sweeney's Claim

Was Independent Under

State Law, Not Subject to

PROWGEGaee 60Ctlc tlc etl tl lt

34,

(3) Dolores Sweeney Was Not A

Party to The Labor Agree-

ment, Had No Access Under

It, Was Not Bound By It,

Thus Her Claim Was Not

Pre-empted. ..+ ++ «+ «

IV. THERE IS NO CONFLICT BETWEEN

THE CIRCUITS ON THE QUESTION OF

WHETHER A § 301 PRE-EMPTION

DEFENSE IS WAIVABLE. ....- -

V. THE RULING BELOW THAT A § 301

PRE-EMPTION DEFENSE IS WAIVABLE

IS CONSISTENT WITH THIS COURT'S

DECISION IN INTERNATIONAL LONG~

CONCLUSION ..+-e+-+-+ee-ee¢ © e@

TABLE OF AUTHORITIES CITED

Pages

TABLE OF AUTHORITIES

556 F. Supp. 452

(S.D.Ohio 1983) ..... 35, 39

471 U.S. 202 (1985) . 19, 26, 36

244 Cal. Rptr. 414

(Cal. App. 1st Dist. 1988) .. 33

809 F.2d 1210 (6th Cir.),

cert. denied, 484 U.S. 820

Co ia 7, 9, 24, 40, 44-46

Brown v. Trustees of Boston

, 891 F.2d 337 (1st

University

Cir. 1989), cert. denied,

110 S. Ct. 3217 (1990) - . 49

Carpenters Health and Welfare

Fund of Philadelphi

Vicinity v. Kenneth R.

Ambrose, Inc., 665 F.2d 466

. of | St | 8, 41

Supply, 776 S.W.2d 290

(Tex. Ct. App. 1989) .... 51

482 U.S. 386 (1987). . .. 20, 48

iii

’

465 U.S. 324 (1984) .... - 30

, 842 F.2d 127

(5th Cir. 1988) ee « « BA

Feltch v. General Rental Co.,

383 Mass. 603, 421 N.E.2d 67

nn -~ “ries = «6 5 « 0 3 34

381 Mass. 507, 413 N.E.2d 690

(1980) * * 7 . * * * * * * 34

414 U.S. 368 (1974) ..... 53

Inc., 803 F.2d 1488

(9th Cir. 1986) >. * . * . 50, 51

Great North American Stationers v-

Ball, 770 S.W.2d 631

(Tex. Ct. App. 1989) ses « OS

‘

442 N.W.2d 308 (Minn. 1989) . 52

International Longshoremen's

Association v. Davis,

476 U.S. 380 (1986) s « Bane,

23, 37, 47 et seq.

876 F.2d 620

(8th Cir. 1989) see « oO

Johnson v. Armored Transport of

, 813 F.2d 1041

California, Inc.

(9th Cir.1987) .. 7, 39, 50, 51

Keehr v. Consolidated Freightways

of Delaware, Inc.,

825 F.2d 133 (7th Cir. 1987) . 32

Layne & Bowler Corp. v. Western

Well Works, Inc.,

e « 2

‘

395 U.S. 653 (1969) oo 6 « ae

684 F. Supp. 163

(Be@emees BUUTD) oc oc ow ow tw ew BB

Chef, 486 U.S. 399 (1988). 26, 31

Vv. NLRB, 111 S.Ct. 2215

(1991) 7 * * . > * * * . 2a» 53

Metropolitan Detroit Bricklayers v.

J.-E. Hoetger & Co.,

672 F.2d 580 (6th Cir.1982). . 38

National Metalcrafters, Division

v. McNeil, 784 F.2d 817

Newman-Green, Inc. v.

Alfonzo-Larrain,

109 S. Ct. 2218 (1989) fa

Paradis v. United Technologies,

Pratt & Whitney Division

672 F. Supp. 67

(D. Conn. 1987). .«. « « « « «© « 32

’

379 U.S. 650 (1965) ..... 19

Cemetery, 349 U.S. 70 (1955) . 42

v. _Garmon, 359 U.S. 236

(1959) os 2a, 37, 40, 47, 50

436 U.S. 180 (1978) .... 37

Teamsters v. Lucas Flour Co.,

3609 U.8. OO 4neee) « so + o-s 36

United States v. Arthur Young & Co.,

465 U.S. 805 (1984) ..... 31

United States v. New York

Telephone Co., 434 U.S. 159

(1977) * * a a > > a > 7. > > an

United States v. Tucker Trucking,

inc., 344 U.S. 33 (1952) ... 49

Unite w

v. Warrior & Gulf Navigation

Co., 363 U.S. 574 (1960) . 53, 55

Wisconsin Electric Co. v.

Dunmore Co., 282 U.S. 813

(1930) . — * > > > > . * * * 46

STATUTES

Labor Management Relations Act,

§ 301, 29 U.S.C. § 185. . passim

National Labor Relations Act,

S7 ang §&SB.-« + oo 49, A Beg.

TREATISES

F. Elkouri & E. Elkouri,

How Arbitration Works

414-419 (4th ed. BNA 1985) .. 55

vii

IN THE SUPREME COURT OF

THE UNITED STATES

October Term i990

WESTVACO COMPANY, ET AL.,

Petitioners,

DOLORES SWEENEY,

Respondent

STATEMENT OF THE CASE

This is a diversity action tried

under Massachusetts state tort law (App.

A at 2a).' The respondent, plaintiff,

Dolores Sweeney was awarded compensatory

damages by a jury for loss of consortium

"Reference herein to the opinion of

the Court of Appeals for the First Cir-

cuit and to the decision of the United

States District Court for the District of

Massachusetts (Ponsor, U.S.M.) will be to

Appendix A ("App. A") and Appendix B

(App. B"), respectively, of petitioners'

Petition for Writ of Certiorari which

will be referred to hereinafter as "Pet.

Cert.*.

caused by the negligent infliction of

emotional distress upon her husband

George Sweeney by Westvaco Company

("Westvaco") and three of its supervisory

employees (App. A at 6a).

George Sweeney worked for more than

twenty-nine years for Westvaco (App. A at

6a). He had “overcome a background of’

adversity (birth defects, deafness in

childhood, loss of a parent), to become,

in his adulthood, a conscientious, kind,

and dedicated employee, liked and re-

spected by his coworkers." (App. A at

6a). Over a period of several months,

George was "harassed, taunted, and humil-

iated" by the three supervisory employees

(App. A at 8a). "(T]he evidence permit-

ted the jury to find behavior of unusual

callousness or cruelty." (App. A at 9a).

George suffered a "serious emotional

breakdown" of dire and permanent conse-

quences (App. A at 9a). Briefly, and

starkly stated: "He cannot work or main-

tain ordinary human relationships. His

wife has become, in effect, a caretaker

(as one expert witness testified), like a

wife with a husband who has Alzheimer's

disease." (App. A at 9a).

This action was commenced in Massa-

chusetts Superior Court against Westvaco.

Westvaco removed “he action to federal

court on the basis of diversity of citi-

zenship jurisdiction (App. A at 10a).

Westvaco and two of the supervisors are

petitioners here.* At the commencement

*In federal court Dolores Sweeney

added the three supervisory employees as

defendants (App. A at 10a), one of whon,

Louis Ronzoni, was dismissed from the

case as a nondiverse party by the First

Circuit under authority of Newman-Green,

inc. v. Alfonzo-Larrain, 109 S. Ct. 2218,

2225-26 (1989). (App. A at 46a-53a).

of the action in March 1986, Dolores and

George Sweeney had been married for over

thirty-five years. At the time of the

trial in June 1989, Dolores Sweeney was

fifty-seven years old and George Sweeney

was sixty-one.?

After discovery was completed, "[iJjn

its pretrial memorandum, Westvaco told

the court that the case raised 'no juris-

dictional issues,' and it ‘agreed with

plaintiff's statement' that the case was

a simple tort suit that did not present

‘any unusual issues of law.'" (App. A at

23a-24a). Only after the jury returned a

$1.5 million verdict for the plaintiff

did Westvaco advance a defense of pre-

emption under § 301 of the Labor Manage-

3Brief and Addendum for the Plain-

tiff-Appellant Dolores Sweeney in the

appeal before the First Circuit, herein-

after "Pl. Br. 1st Cir." at 2.

ment Relations Act, 29 U.S.C. § 185(a).

(App. A at 3a-4a). "The Magistrate, who

ruled on pretrial motions, conducted the

trial, held a charge conference, and

heard all the parties' arguments, wrote

that Westvaco did not give 'notice of any

pre-emption issue' until .. . Westvaco

filed its motion for judgment notwith-

standing the verdict." (App. A at 24a).

The Magistrate, believing that pre-

emption under § 301 was "jurisdictional"

and could be raised at any time, "reluc-

tantly" allowed Westvaco's motion for

judgment notwithstanding the verdict

(App. B at 2b). The Magistrate, however,

stated that if the normal rules of issue

preservation were to be applied, the

court "would not hesitate to deny" the

motion (App. B at 17b-18b). In conclu-

sion, the Magistrate was moved to add:

In the introduction to

this Memorandum the court stat-

ed that it was granting defend-

ants' motion for judgment n.o.v

"reluctantly." This sentiment

bears repeating. The trial in

this case was long and painful,

particularly for the plaintiff

and her husband. The court's

decision now must obviously

heighten that distress.

(App. B at 46b).

The First Circuit found it unneces-~

sary to reach the merits of whether § 301

applied to the circumstances of this

case. It found that the Magistrate was

correct in finding that the defendants

would ordinarily be deemed to have waived

their pre-emption defense (App. A at 24a-

25a). The court, however, rejected the

Magistrate's conclusion that § 301 pre-

emption was "jurisdictional" in the sense

that it was not subject to waiver. In-

stead, the court concluded that "in an

appropriate case, a party can waive § 301

pre-emption; the parties do not have an

absolute right to raise that argument at

any stage they wish in the proceedings."

(App. A at 42a). The First Circuit va-

cated the Magistrate's judgment for the

defendants and remanded with instructions

to reinstate the jury's verdict for the

plaintiff (App. A at 53a-54a).

In so holding, the First Circuit

agreed with the Ninth Circuit, Johnson v.

spo iforni 7

813 F.2d 1041 (Sth Cir.1987), the Sixth

Circuit, Apponi v. Sunshine Biscuits,

Inc., 809 F.2d 1210, 1215 (6th Cir.),

cert. denied, 484 U.S. 820 (1987), and

the Seventh Circuit, National Metalcraft-

ers, Div. of Keystone Consol. Indus. v.

McNeil, 784 F.2d 817, 825-26 (7th

Cir.1986). (App. A at 42a).

The court distinguished the Third

Circuit case of Carpenters Health and

welf Fund of Philadelphi 1 Vicinit

v. Kenneth R. Ambrose, Inc., 665 F.2d 466

(3d Cir. 1981), which was relied upon as

a contrary holding by the defendants. In

Carpenters, the Third Circuit dismissed

an appeal as premature, holding that the

decision below was not final until attor-

ney fees had been assessed. In dismiss-

ing, the Third Circuit simply stated that

"if the issue of pre-emption were not

jurisdictional, a strong case for waiver

could be made on [the] facts." Id. at

469-70. The First Circuit found defend-

ants' reliance on Carpenters misplaced.

Rather, the court stated, "this single

sentence, dicta in context, made without

analysis . . . makes that case weak sup-

port for Westvaco's claim." (App. A at

40a). Petitioners persist, offering to

this Court, Carpenters as a "directly

contrary holding" (Pet. Cert. at 17), and

as the case constituting a conflict in

the circuits (Pet. Cert. at 26).

After concluding that § 301 pre-emp-

tion is subject to waiver, the First Cir-

cuit considered whether, upon the facts

of this case, it would exercise its dis-

cretion to address an issue that had not

been timely raised (App. A at 42a-46a).

The court distinguished on the facts, not

on principles of law, Apponi v. Sunshine

Biscuits, Inc., supra, and National

Metalcrafters, Div. of Keystone Consol.

Indus. v. McNeil, supra, offered by the

defendants as cases where "even if a par-

ty, by not raising the pre-emption de-

fense, can waive it, courts sometimes

forgive and overlook a failure to raise a

legal issue at the proper time." (App. A

at 42a). The court found that it would

be unfair in the instant case to relieve

the defendants of their failure, “for the

circumstances simply do not call for an

exception." (App. A at 44a).

Westvaco could have raised pre-

emption at any point before the

jury deliberated. There is no

good reason for its neglect.

The unfairness is obvious and

aggravated here, by the fact

that, at least arguably, Mrs.

Sweeney might have tried to

reshape her case to avoid any

need for contract interpreta-

tion had she known of the prob-

lem sooner.

(App. A at 44a).

Chief Judge Breyer, writing for the

court in a unanimous decision from which

the petitioners did not seek rehearing

(Pet. Cert. at 21), concluded:

Given the facts that the par-

ties had the legal power to try

this case as a simple tort

suit, that Westvaco (until it

lost) chose to do so, that

—— EE —

plaintiff spent considerable

time, effort, and expense in

gaining victory, we believe it

fair to hold the parties to the

legal theories they asserted in

this case prior to the jury's

award. We have the legal power

to require this result. And,

we have exercised that power.

(App. A at 53a).

The petitioners, having emotionally

distressed, exhausted and judicially pre-

judiced the respondent, now seek to en-

ploy certiorari to rescue themselves from

their own negligence in failing to raise,

until after a jury verdict, the issue of

the potential application of § 301.

SUMMARY OF ARGUMENT

Ze The national labor policy favoring

grievance-arbitration resolution of labor

disputes is not implicated, much less

threatened, by the First Circuit's deci-

Sion. Petitioners' argument that the

First Circuit's decision that § 301 is

subject to waiver allows respondent to

"sidestep" national iabor policy is with-

out substance, because the First Circuit

did not decide § 301 applied to the cir-

cumstances of the case at bar, and if

there is any sidestepping here it is

raised by the conduct of the petitioners,

who having suffered an adverse verdict,

and not having raised the question of the

applicability of § 301 pre-emption until

after the verdict, now seek to sidestep

the rules of practice that govern litiga-

tion in the federal courts. The ruling

below is consistent with both national

labor policy and orderly judicial admin-

istration. The integrity of the policy

is not undermined; all one need do is

invoke by any one of the numerous oppor-

tunities afforded in the procedural and

trial practice. In addition, the peti-

)

tioners had "no good reason for their

neglect" and, in the circumstances of

this case, “unfairness is obvious and ag-

gravated here."

II. This case does not present the issue

sought to be reviewed in the clear and

unequivocal manner necessary for certio-

rari review. The petitioners, now in

extremis, attempt to cast this matter

Simply as a labor-management case, en-

deavoring to posture it as a simple and

clean question respecting the pre-emptive

reach of § 301. The underlying facts and

the decision of the First Circuit belie

this. As a matter of simple justice, it

cannot be said that harassment, taunting,

and humiliation, "behavior of unusual

callousness or cruelty," are rights of

management under any labor agreement.

Additionally, the First Circuit found it

unnecessary to reach the question of

whether § 301 actually applied to the

circumstances of this case. The peti-

tioners' representation that "[tjhe in-

stant case presents this Court with an

opportunity to address directly the issue

of whether an otherwise valid assertion

of § 301 preemption may be waived by a

party or raised at any time" is an over-

statement of the record.

III. This case is not appropriate for

certiorari review as the judgment is sup-

portable on the alternative grounds that:

(1) The claim challenging defendants'

conduct was not pre-empted, because it

was "harassing, taunting, and humiliat-

ing" conduct, of "unusual callousness or

cruelty," behavior that cannot reasonably

be within the rights of an employer under

any contract; (2) Respondent's claim was

independent under state law, not subject

to pre-emption; and (3) Respondent was

not a party to the labor agreement, had

no access under it, was not bound by it,

thus her claim was not pre-empted.

IV. There is no conflict between the

circuits on the question of whether a §

301 pre-emption defense is waivable. The

Third Circuit case upon which petitioners

rely as establishing a contrary holding

is recognized as dicta; and the decisions

of the Sixth and Seventh Circuit upon

which they rely are distinguished on the

facts, not on principles of law.

V. The ruling below that a § 301 pre-

emption defense is waivable is consistent

with this Court's decision in Interna-

tional Longshoremen's Association v. Da-

vis; the reliance of the First Circuit

upon the distinction in Davis of choice-

of-forum and choice-of-law pre-emption

for purposes of distinguishing pre-

emption under the NLRA from § 301 the

LMRA is fully consistent with and does

not undermine established labor policy.

REASONS FOR NOT GRANTING THE WRIT

I. THE NATIONAL LABOR POLICY FAVORING

GRIEVANCE-ARBITRATION RESOLUTION OF

LABOR DISPUTES IS NOT IMPLICATED,

MUCH LESS THREATENED, BY THE FIRST

CIRCUIT'S DECISION.

II. THIS CASE DOES NOT PRESENT THE ISSUE

SOUGHT TO BE REVIEWED IN THE CLEAR

AND UNEQUIVOCAL MANNER NECESSARY FOR

CERTIORARI REVIEW.

III. THIS CASE IS NOT APPROPRIATE FOR

CERTIORARI REVIEW AS THE JUDGMENT IS

SUPPORTABLE ON ALTERNATIVE GROUNDS.

(1) The Claim Challenging Defend-

ants' Conduct Was Not Pre-

empted.

(2) Dolores Sweeney's Claim Was

Independent Under State Law,

Not Subject to Pre-emption.

(3) Dolores Sweeney's Claim Was Not

Pre-empted Because She Was Not

A Party to The Labor Agreement.

IV. THERE IS NO CONFLICT BETWEEN THE

CIRCUITS ON THE QUESTION OF WHETHER

A § 301 PRE-EMPTION DEFENSE IS WAIV-

ABLE.

V. THE RULING BELOW THAT A § 301 PRE-

EMPTION DEFENSE IS WAIVABLE IS CON-

SISTENT WITH THIS COURT'S DECISION

I. THE NATIONAL LABOR POLICY FAVORING

GRIEVANCE-ARBITRATION RESOLUTION OF

LABOR DISPUTES IS NOT IMPLICATED,

MUCH LESS THREATENED, BY THE FIRST

CIRCUIT'S DECISION.

The respondent is compelled at the

outset to note that petitioners strive

here to turn this case on its head.

Their petition is replete with claims

that the ruling below allows respondent

to "sidestep" national labor policy em-

bodied in § 301 respecting application of

federal law and the use of bargained-for

grievance and arbitration procedures in

the resolution of labor-management dis-

putes (e.g., Pet. Cert. at 24, 47, 50).

That is not so. The petitioners "do pro-

test too much."

This record does not establish that

§ 301 applied to any, only to some, or

preclusively to all the behavior of the

petitioners, or at all to Dolores

Sweeney's claim. (See Argument III).

More fundamentally, national labor

policy favoring grievance-arbitration

resolution of labor disputes is not at

all threatened by the ruling below as

petitioners would have this Court be-

lieve. This Court's jurisprudence under

§ 301 demonstrates its concern with shap-

ing the federal common law so as to re-

quire appropriate utilization of the

grievance-arbitration process. For exam-

ple, in Republic Steel Corp. v. Maddox,

379 U.S. 650, 652-653 (1965), this Court

held that a plaintiff could not, consis-

tent with § 301, by-pass the grievance-

arbitration procedure in order to pursue

a state law claim for severance pay.

This Court stated in Allis-Chalmers Corp.

v. Lueck, 471 U.S. 202, 220 (1985) (cit-

ing Maddox, 379 U.S. at 653), that "[a]

rule that permitted an individual to

sidestep available grievance procedures

would cause arbitration to lose most of

its effectiveness[.]"

The concerns underlying the decision

in Mattox and its progeny are wholly in-

apposite to the case at bar. Even if the

ruling below is left intact, as well it

should be, the plaintiff who forgoes re-

sort to the grievance-arbitration mecha-

nism and elects to pursue state law

claims does so at the peril of having to

overcome a properly asserted pre-emption

defense.

Thus, “sidestepping" is not the is-

sue. The true issue is the repeated

failure by the petitioners to avail them-

selves properly of the numerous opportu-

nities afforded by the established rules

of procedure and trial practice to test

the applicability of § 301 (e.g., discov-

ery; motions to dismiss, for judgment on

the pleadings, summary judgment, directed

verdict) .*

“‘Petitioners' observe that in the

removal context, § 301 pre-emption "over-

rides the ‘well pleaded complaint’

rule[{,]" citing Caterpillar Inc. v. Wil-

liams, 482 U.S. 386, 393 (1987). (Pet.

Cert. at 50-51). This is yet another

hurdle for the "sidestepping" plaintiff,

and as petitioners recognize, it "dis-

courage[s] artful pleading[{.]" (Pet.

Cert. at 51). It points more to the ade-

quacy of existing controls than to the

need for an absolute refuge from "unart-

ful" defense.

These failures are not disputed

here.?

If there is a sidestepping issie

presented here, it is raised by the con-

duct of the petitioners, who, having for-

gone multiple opportunities to raise

their pre-emption defense, and having

done so only in the face of an adverse

jury verdict, now seek to sidestep the

rules of practice that govern litigation

in the federal courts. That the concerns

for federal pre-emption may coexist with

the orderly resolution of disputes has

already been recognized by a number of

the members of this Court.

In io sho en's As-

sociation v. Davis, 476 U.S. 380, 391

(1986), where this Court applied so-

*See Pet. Cert. at 14 n.5.

called "Garmon" pre-emption"”® as "juris-

dictional", in the sense that a grant of

exclusive adjudicatory power to one forum

precluded waiver in other fora, four Jus-

tices disagreed, concerned that the deci-

sion afforded a wait-and-see option dis-

ruptive to judicial administration:

By allowing a defendant to save

its pre-emption claim until

after it sees the verdict, this

ruling poses a sufficient

threat to orderly judicial pro-

ceedings that it can be justi-

fied only if Congress has man-

dated such a result. Because

Congress clearly has not man-

dated any such result, I dis-

agree with Part II of the

Court's opinion.

Davis, supra, 476 U.S. at 399 (Rehnquist,

J., concurring in part, joined by Powell,

J., Stevens, J., O'Connor, J.).

Here Alabama, by application of

a neutral statute with a pre-

San Diego Building Trades Council

v. Garmon, 359 U.S. 236 (1959) (hereinaf-

ter "Garmon")

cise counterpart in the Federal

Rules of Civil Procedure, has

said that a defendant who wish-

es to claim federal pre-emption

as a defense to state-court

exercise of jurisdiction may

not wait to raise that claim

until after the case has gone

to verdict. The Court, saying

otherwise, allows a sophisti-

cated defendant as in the pres-

ent case to gamble on obtaining

a favorable verdict and raise a

pre-emption defense only if it

loses on the merits. Tec me

this result defies common

sense; if Congress had ordained

it, I would reach it albeit

with reluctance. But it is

this Court, not Congress, that

has ordained the result. I

believe the Court is mistaken

in doing so, and I therefore

cannot join Part II of its

opinion.

Id. at 402-03.

Westvaco was surely as sophisticated

as Dolores Sweeney in labor matters.’

Accordingly, the decision that § 301

pre-emption is subject to waiver, is not

’Westvaco "is a large corporation

[that] committ[{ed] significant resources

to defending this case." App. A at 18a).

inconsistent with national labor policy,

nor does it condone "sidestepping", as

the petitioners argue as their Reason IV

(Pet. Cert. at 39). The policy is in-

tact; all one need do is properly invoke

the pre-emption defense. Indeed, in ap-

propriate cases, considering the strong

policy supporting § 301 pre-emption,

courts may even afford relief from fail-

ure to timely invoke pre-emption. See

Apponi v. Sunshine Biscuits, Inc., supra,

and National Metalcrafters, Div. of Key-

stone Consol. Indus. v. McNeil, supra.

What petitioners seek here, by

Claiming a right to their neglect under

cover of "jurisdiction", is absolute dis-

pensation from established, essentially

equitable|and understood rules of proce-

dure and trial practice. They seek even

to avoid the discretion of appellate

courts in deciding whether to reach is-

sues not timely raised. The establish-

ment of the rule sought by the petition-

ers - an absolute right to raise a § 301

pre-emption defense at any time, even

after a jury verdict - is not necessary

to discourage "sidestepping"; rather, the

rule would encourage and reward dalli-

ance, negligence, or worse, intentional

manipulation of procedural and trial

practice.

Unfairness

In addition to the unfairness dis-

cussed above, petitioners prejudiced Do-

lores Sweeney. Not only did the First

Circuit state that "Westvaco had no good

reason for its neglect" (App. A at 44a),

it considered the "unfairness ... obvi-

ous and aggravated here. .. . [where]

Mrs. Sweeney might have tried to reshape

her case to avoid any need for contract

interpretation had she know of the prob-

lem sooner." (App. A at 44a).

It is established that "substantive

rights in labor relations can exists

without interpreting collective-bargain-

ing agreements." Lingle v. Norge Division

of Magic Chef, 486 U.S. 399, 411 (1988).

"(NJot every dispute concerning employ-

ment, or tangentially involving a provi-

sion of a collective-bargaining

agreement, is pre-empted by § 301... ."

Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 211 (1985). Both Lingle and Allis-

Chalmers recognize considerable freedom

for operation of the states' police pow-

er. Mrs. Sweeney may well have been able

to de-emphasize or eliminate any aspect

of her claim that may have impacted §

301, she may have developed further those

aspects of the defendants' behavior not

impacted by § 301.8 Certainly harassing,

taunting, and humiliating behavior (App.

A at 9a) offered such opportunities.

II. THIS CASE DOES NOT PRESENT THE ISSUE

SOUGHT TO BE REVIEWED IN THE CLEAR

AND UNEQUIVOCAL MANNER NECESSARY FOR

CERTIORARI REVIEW.

Through the course of more than

three years of litigation, including sev-

en arduous days of jury trial, the peti-

tioners and their counsel were content to

view this matter as simply a tort case

(App. A at 53a). The petitioners, now in

®Petitioners disparage, as condoning

“artful pleading," the First Circuit's

observation that Mrs. Sweeney may have

"reshaped" her claim. (Pet. Cert. at 51-

52, n.15). Petitioners' criticism is

A unjustified. Lingle and Allis-Chalmers

, contemplate legitimate claims within the

labor context as displayed above (see

text at 27), and “sidestepping" by "art-

ful pleading" is already well subject to

discovery, motions, and even removal (see

footnote 4).

extremis, attempt in their "Statement of

The Case" to cast this matter simply as a

labor-management case, endeavoring to

posture it as a simple and clean question

respecting the pre-emptive reach of §

301. The underlying facts and the deci-

sion of the First Circuit belie this. As

a matter of simple justice, it cannot be

said that harassment, taunting, and hu-

miliation, "behavior of unusual callous-

ness or cruelty" (App. A at 9a), are

rights of management under any labor

agreement. Additionally, the First Cir-

cuit found it unnecessary to reach the

question of whether § 301 actually

applied to the circumstances of this case

(App. A at 23a).

The First Circuit did not decide

whether certain or any of the aspects of

the conduct of the defendants required

interpretation of the labor agreement so

as to trigger § 301 pre-emption in the

first place; nor did the court decide

whether Dolores Sweeney, whose claim was

independent under state law of any claim

of George Sweeney, who was not a party to

the labor agreement, and who had no

rights or recourse under it, was pre-

empted by § 301.°

Thus, petitioners' representation

that "[t]jhe instant case presents this

Court with an opportunity to address di-

rectly the issue of whether an otherwise

valid assertion of § 301 preemption may

*These several issues were fully

briefed before the First Circuit by

Plaintiff-Appellant Dolores Sweeney: In-

terpretation of agreement not required, §

301 inapplicable (Pl. Br. 1st Cir. at 45-

49); Dolores Sweeney's claim independent,

not party to agreement, not pre-empted by

§ 301 (Pl. Br. 1st Cir. at 38-45), and

argued here (Argument III) as providing

alternative grounds to support the judg-

ment below.

be waived by a party or raised at any

time" is an overstatement of the record

("Pet. Cert." at 23) (emphasis added). A

serious question of the appropriateness

of this case for certiorari review on the

issue posited by the petitioners is pre-

sented. It is not presented in the

“clear and unequivocal manner which is so

necessary for proper adjudication in this

Court." Lear, Inc. v. Adkins, 395 U.S.

653, 675 (1969). The question is precar-

iously presented at best.

III. THIS CASE IS NOT APPROPRIATE FOR

CERTIORARI REVIEW AS THE JUDGMENT IS

SUPPORTABLE ON ALTERNATIVE GROUNDS.

This Court refuses to grant a writ

of certiorari where there are alternative

grounds for finding that the judgment

below is correct. See Colorado v. Nunez,

465 U.S. 324 (1984). The “precedents [of

this Court] establish that a prevailing

party may urge any ground in support of

the judgment, whether or not that ground

was relied upon or even considered by the

court below." United States v. Arthur

Young & Co., 465 U.S. 805, 814, n.12

(1984); United States v. New York Tele-

phone Co., 434 U.S. 159, 166, n. 8

(1977). There are at least three such

grounds here.

(1) The Claim Challenging Defendants’

Conduct Was Not Pre-empted.

A fair reading of the proofs before

the jury will demonstrate that although

the infliction of emotional distress as-

pect of the claim occurred in an employ-

ment context, interpretation of the labor

agreement was not in dispute. Indeed, as

in Lingle vy. i Divis! , Magi

Chef, 486 U.S. at 407, the “factual ques-

tions pertain[ed] to . . . the conduct

and motivation[(s] of the [{defendants]."

Manner of conduct, and motives of the

supervisors were the issue, not rights

under the contract to issue the warning,

review safety, operate machines at pro-

duction speed, or transfer George Sweeney

to the tool crib.

The First Circuit found that George

Sweeney was "harassed, taunted, and hu-

miliated" (App. A at 8a), that the defen-

dants behavior was of "unusual callous-

ness or cruelty." (App. A at 9a). Such

behavior cannot reasonably be within the

rights of an employer under any contract.

E.g., Keehr v. Consolidated Freightways

of Delaware, Inc., 825 F.2d 133, 138-137

(7th Cir. 1987) (callousness, humili-

ation, insult, vexation certainly not

pre-empted by § 301); Paradis v. United

Technologies, Pratt & Whitney Div., 672

F.Supp. 67, 71 (D. Conn. 1987) (harass-

ment not pre-empted under § 301); Alpha

Beta, Inc., v. Superior Court, 244

Cal.Rptr. 414 (Cal. App. ist Dist. 1988)

(personal abuse not pre-empted by § 301).

The First Circuit stated:

The case in its present posture

does not offer a specific in-

terpretation of any word con-

tained in the relevant collec-

tive bargaining agreement. Nor

is there the slightest indica-

tion that any third party, any

other worker, any union, any

employer, is adversely affected

by any collective bargaining

agreement interpretation here

at issue.

(App. A at 45a).

Thus, there was no occasion to in-

terpret the contract.

(2) Dolores Sweeney's Claim Was Indepen-

dent Under state Law, Not Subject to

Pre-emption.

As the First Circuit found, at the

time the cause of action arose a loss of

consortium claim was independent under

Massachusetts tort law of the claims of

the other spouse (App. A at 10a). Feltch

v. General Rental Co., 383 Mass. 603, 421

N.E.2d 67 (1981) (a plaintiff's recovery

for loss of consortium is not to be re-

duced by the proportion of negligence

attributable to the plaintiff's spouse

under comparative negligence statute) ;

ri v. Danie '‘Connell's Sons, 381

Mass. 507, 413 N.E.2d 690 (1980) (workers

compensation statute does not bar employ-

ee's spouse from suing the employer for

loss of consortium due to injury of en-

ployee). Accordingly, Dolores Sweeney's

Claim was not pre-empted by § 301. See

anneal

Adkins v. General Motors Corp., 556

F.Supp. 452, 458 (S.D.Ohio 1983) (loss of

consortium claim not pre-empted by § 301,

"under Ohio law . . . a spouse {has} a

separate and independent cause of action

for loss of consortium.") ."°

(3) Dolores Sweeney Was Not A Party to

The Labor Agreement, Had No Access

Under It, Was Not Bound By It, Thus

Her Claim Was Not Pre-empted.

The basic principle that one not a

party to a contract is not bound by the

terms of that contract (and has no re-

course under it) applies in the applica-

tion of § 301 pre-emption. While it may

not be denied that a policy of consisten-

phe case of Johnson v. Anheuser-

Busch, 876 F.2d 620 (8th Cir. 1989) re-

lied on by the Magistrate (App. B at 45b)

is inapposite, because under the state

law there applicable, loss of consortium

was a derivative claim arising out of the

tort claims of the injured spouse.

are

cy underlies pre-emption law, it seems

inappropriate, at best, to support con-

sistency in interpretation of the "bar-

gain" of the parties to the labor agree-

ment on the backs of a stranger. Indeed,

this is implicit in the otherwise express

terms of the opinions of this Court. In

s Ss _v. Lucas O., 369 U.S.

95, 104 (1962), the Court's concern was

that "conflicting legal concepts might

substantially impede the parties' will-

ingness to agree to terms. .. ." (empha-

sis added). In Allis-Chalmers v. Lueck,

471 U.S. at 217, a tenet of the Court's

holding was that "the parties ... are

free to bargain about what ‘reasonable’

performance of their contract obligation

entails." (emphasis added). The Court

was concerned in Allis-Chalmers v. Lueck,

supra at 220, that "[{a] rule that permit-

ected

ted an individual to sidestep available

grievance procedures would cause arbitra-

tion to lose most of its effectiveness."

(emphasis added).

The principle that a stranger to the

contract has no rights under it, and is

not precluded by it, has been implemented

by this Court even in the preclusive con-

text of so-called "Garmon" jurisdictional

pre-emption. lego Buildi s

Vv. on, 359 U.S. 236. “We

have recognized an exception for conduct

that is arguably protected under § 7

where the injured party has no means of

bringing the dispute before the Board."

International Longshoremen's Association

v. Davis, supra at 393, n.10 (citing

Sears, Roebuck & Co. v. Carpenters, 436

U.S. 180 (1978)). Obviously, Dolores

Sweeney had no means of pursuing a griev-

ance or arbitration under the agreement.

""*rCjourts have generally held that

[§ 301] creates federal jurisdiction only

over parties to the contract being sued

upon.' Metropolitan Detroit Bricklayers

v. J.E. Hoetger & Co., 672 F.2d 580, 583

(6th Cir.1982) (emphasis added)." Lee v.

General Motors Corp., 684 F.Supp. 163,

165 (E.D.Mich. 1987). Accordingly, only

those parties are pre-empted by its ap-

plication. In Lee v. General Motors

Corp. supra, the court held that a female

employee's state law claims against her

employer and a security guard were not

pre-empted, because she lacked standing

to sue under § 301, as she was neither a

signatory to the collective bargaining

agreement between employer and guard

workers' union, nor was she a member of

that union, and she was not a third-party

beneficiary of agreement. See also Adkins

v. General Motors Corp., supra at 458

(loss of consortium claim not pre-empted

under § 301 precisely because the consor-

tium plaintiffs, wives of employees of

the defendant, had no standing to sue

under § 301).

IV. THERE IS NO CONFLICT BETWEEN THE

CIRCUITS ON THE QUESTION OF WHETHER

A § 301 PRE-EMPTION DEFENSE I8 WAIV-

ABLE.

The First Circuit observed that in

Johnson v. Armored Transport of Califor-

nia, Inc., 813 F.2d 1041, 1043-44 (9th

Cir. 1987), the Ninth Circuit expressly

held that a § 301 pre-emption defense is

waivable and that the parties "do not

posses an absolute right to raise it for

the first time on appeal." (App. A at

37a). "Similarly", the court stated, the

Sixth Circuit in Apponi v. Sunshine Bis-

cuits, Inc., supra, and the Seventh Cir-

cuit in National Metalicrafters v. McNeil,

supra, “have held that a defendant may

raise a § 301 pre-emption argument for

the first time on appeal in special cir-

cumstances,"") thereby holding that the

claim is not one that the parties have an

absolute right to raise at any time."

(App. A at 37a-38a) (emphasis in origi-

nal).

Thus, the First Circuit concluded:

[W]e agree with the Ninth Cir-

cuit and with what we take as

the holding implicit in the

approach of the Sixth and Sev-

enth Circuits, namely, that in

an appropriate case, a party

can waive § 301 pre-emption;

the parties do not have an ab-

solute right to raise that ar-

“These "special circumstances" are

addressed hereinafter at page 42.

| |

gument at any stage they wish

in the proceedings.

(App. A at 42a).

As outlined in the Statement of the

Case,"* the First Circuit recognized as

dicta, without analysis, the statement of

the Third Circuit in Carpenters, supra at

469-70, that "if the issue of pre-emption

were not jurisdictional, a strong case

for waiver could be made on [the] facts."

Nevertheless, petitioners offer this case

as a "directly contrary holding" (Pet.

Cert. at 17). The petitioners criticize

the First Circuit, arguing that Carpen-

ters was dictum only in a technical sense

(Pet. Cert. at 26, n.9). But, dictum it

remains. Moreover, the Third Circuit did

not have the benefit of this Court's

See page 8 herein.

teaching in Davis. (See Argument V herein

at page 47).

Accordingly, it does not appear that

a substantial conflict, or indeed any

conflict exists as to whether a § 301

pre-emption defense is waivable.

Certainly, there is not "a real and em-

barrassing conflict of opinion and

authority between the Circuit Courts of

Appeals" as to warrant certiorari review.

e Bow Corp. v. Western Wel

Works, Inc., 261 U.S. 387, 393 (1923)

quoted in Rice v. Sio

Park Cemetery, 349 U.S. 70, 79 (1955).

In National Metalcrafters, supra,

and Apponi, supra, "special circumstanc-

es" prevailed. (App. A at 37a).

The Seventh Circuit decision in Na-

tional Metalcrafters was fact specific.

First, the defendant actually argued pre-

emption in the district court, albeit

without specific reference to § 301. Na-

tional Metalcrafters, supra at 825.

Thus, the very fact that in National

Metalcrafters the defense of pre-emption

was raised to the extent that it was is

an important distinction. Second, the

court held that the issue of § 301 pre-

emption in the case was intertwined with

Garmon pre-emption under § 8 of the Na-

tional Labor Relations Act. Indeed, the

court concluded that the "dispute over

vacation pay is doubly preempted; by sec-

tion 301 of the Taft-Hartly Act and by

section 8 of the National Labor Relations

Act." National Metalcrafters, supra at

828 (emphasis added). Finally, National

Metalcrafters was a case of declaratory

judgment, disposed of in the district

court upon a motion to dismiss not in-

volving protracted litigation and a "long

and painful" jury trial as in the instant

case. (App. B at 46b).

The Sixth Circuit in Apponi charac-

terized pre-emption under § 301 as an

“affirmative defense", but “declined to

apply the waiver rule." Id. at 1215 (cit-

ing National Metalcrafters, supra at 825-

826). The action was for was for breach

of contract by the defendant in refusing

to pay early retirement benefits under a

collectively-bargained pension plan. The

trial judge submitted a single factual

issue to the jury - whether during the

negotiation of the plan the defendant had

made particular parol representations

affecting early retirement. The jury

found that the defendant had.

On appeal to the Sixth Circuit, the

defendant raised the defense of pre-

emption under § 301. The Sixth Circuit

held that the claim was pre-empted, but

preserved, “as binding upon the parties"

the jury finding that the defendant had

made the representations. Apponi, supra

at 1220. The court ordered the district

court, on remand, to “instruct the jury

that the representations were made." Id.

In Apponi, the alleged breach was square-

ly within a collectively-bargained agree-

ment, indeed the dispute arose directly

out of labor negotiations themselves. Id.

at 1215. The plaintiffs could relitigate

the same factual disputes. Moreover, the

plaintiffs were not prejudiced by belated

consideration of preemption, because a

jury finding favorable to the plaintiffs

and central to their case was preserved.

Thus, in all these particulars, Na-

tional Metalcrafters and Apponi are dis-

tinguishable on the facts from the case

at bar. The decision of the First Cir-

cuit not to "forgive and overlook" the

defendants' failure to timely raise pre-

emption (App. A at 42a; 46a), distin-

guished National Metalcrafters and Apponi

on the facts - on a "host of special cir-

cumstances" (App. A at 43a) - not on

principles of law. The court found that

in the instant case "the circumstances

simply do not call for an exception."

(App. A at 44a). "[Cjonflict in deci-

sions aris({ing] from differences in

states of fact, and not in the applica-

tion of a principle of law" do not jus-

tify granting a writ of certiorari. Wis-

consin Electric Co. v. Dunmore Co., 282

U.S. 813 (1930) (per curiam; dismissing

writ as improvidently granted).

’

Vv. THE RULING BELOW THAT A § 301 PRE-

EMPTION DEFENSE I8 WAIVABLE I8 CON-

SISTENT WITH THIS COURT'S DECISION

IN INTERNATIONAL LONGSHOREMEN'S AS~

SOCIATION V. DAVIS.

This Court held in Davis that Garmon

pre-emption was not waivable because

Congress invested the NLRB with exclusive

jurisdiction over claims under §§ 7 and 8

of the NLRA. Davis at 391. Petitioners

attempt to gather from Davis that pre-

emption under § 301 of the LMRA is not

waivable. They argue, that as they had

before the First Circuit, that for pur-

poses of § 301 pre-emption, "the griev-

ance and arbitration process under a col-

lective bargaining agreement is... the

analog" to exclusive forum jurisdiction

under Garmon pre-emption. (Pet. Cert. at

36) (see App. A at 30a) The First

Circuit's rejection of this argument den-

onstrates clearly that the petitioners’

reliance on Davis is fully misplaced.”

“petitioners argue, in support, that

because this Court said in

supra at 393, that a complaint is viewed

"from inception" as arising under federal

law so as to constitute an exception to

the "well pleaded complaint" rule, a

state law claim may not be adjudicated

even where a pre-emption or “arising un-

der" argument is not made. (Pet. Cert. at

32-33) (see also footnote 4 herein).

This certainly “overworks" Caterpillar,

and is an attempt to resurface an argu-

ment made by the defendants (and rejected

by the First Circuit), that, because in

the removal context of § 301 "claims"

courts have used the word jurisdiction, §

301 is “jurisdictional” in the sense that

it cannot be waived (App. A at 38a-39a).

The First Circuit stated: "But that is

not what these cases hold." (App. A at

38a). The First Circuit recognized that

while these cases employed the "protean

word 'jurisdiction'" (App. A at 38a),

they did not involve waiver (App. A at

39a). Rather, the court said, they

“dealt with the question whether the dis-

trict court had properly held that § 301

pre-empted the plaintiff's state-law

claim, and whether there was a sufficient

basis for ‘arising under' jurisdiction

after removal." (App. A at 39a). "[Tjhe

term 'jurisdiction' .. . is a verbal

coat of . . . many colors." Davis at 402

(Rehnquist, J., concurring, quoting Jus-

(continued...)

Among the elements of the court's

analysis were that:

the Supreme Court carefully

limited its holding in Davis.

It made clear that it was de-

scribing Congress's "jurisdic-

tional" intent in respect to §§

7 and 8 of the NLRA, not other

statutes. .. . Moreover, the

Court spoke of Congress's in-

tent, in respect to pre-emption

by §§ 7 and 8 of the NLRA, as

involving "a choice-of-forum

rather than a choice-

question." Davis, 476 U.S. at

391.

(App. A at 31la-32a) (citing Brown v.

Trustees of Boston University, 891 F.2d

337, 363 (lst Cir. 1989), cert. denied,

110 S.Ct. 3217 (1990)). The court

3(...continued)

tice Frankfurter in United States v.

Tucker Truck Lines, Inc., 344 U.S. 33, 39

(1952)).

“In the last quoted passage, the

First Circuit was referring to this

Court's language in Davis at 391, that:

when a state proceeding or reg-

ulation is claimed to be pre-

(continued...)

continued, that this Court had warned in

Davis at 391, n.9, that:

our decision today does not

apply to pre-emption claims

generally but only to those

pre-emption claims that go to

the State's actual adjudicatory

or regulatory power as opposed

to the State's substantive

laws.

The First Circuit concluded that "LMRA §

301 pre-emption (unlike NLRA §§ 7 & 8

pre-emption) concerns what law a decision

maker must apply, not what forum must

decide the dispute" (App. A at 36a).

The Ninth Circuit in Johnson, supra,

had reached the same conclusion employing

4. ..continued)

empted by the NLRA under

Garmon, the issue is a choice-

of forum rather than a choice-

of-law question. As such, it

is a question whether the State

or the Board has jurisdiction

over the dispute. If there is

pre-emption under Garmon, then

state jurisdiction is extin-

guished.

eer eentel

- ~ Bs ate.

its prior interpretation in Gilchrist v.

Jim Slemons Imports, Inc., 803 F.2d 1488

(9th Cir. 1986), of this Court's opinion

in_Davis. The Ninth Circuit stated that

in Gilchrist "we analyzed the reasoning

in Davis and extrapolated the following

rule: ‘a preemption argument that affects

the choice of forum rather than the

choice of law is not waivable; thus it

can be raised for the first time on ap-

peal.'" Johnson, supra at 1043 (quoting

Gilchrist, supra at 1907).

state and federal courts are uni-

form in their understanding of this

teaching of Davis: E.g., Dueringer v.

General American Life Ins. Co., 842 F.2d

127, 130 (5th Cir. 1988) (pre-emption

involving "“choice-of-law" is subject to

waiver, citing Johnson, supra at 1043-44

and Gilchrist, supra at A897 (9th Cir.

1986) );

Supply, 776 S.W.2d 290 is Ct. App.

1989); Great North American Stationers v.

Ball, 770 S.W.2d 631 (Tex. Ct. App. 1989)

("From the Court's conclusion [in Davis}

we identify the following rule: a preemp-

(continued...)

In rejecting the defendants’ analog

argument that Congress intended grievance

and arbitration as exclusive fora, the

First Circuit reasoned, in part, that

Congress could not have so intended in as

much as Congress "does not require that

collective bargaining agreements provide

for grievance and arbitration" (App. A at

35a), and that it is abundantly clear

that parties to a dispute "may waive the

benefit of these procedures." (App. A at

35a).

In this the First Circuit seems

clearly correct. In Litton Financial

9(...continued)

tion argument that affects the choice of

forum rather than the choice of law is

not subject to waiver; conversely, a pre-

emption claim that affects only the law

to be applied and not the court which may

hear the dispute is waivable."); Hubred

, 442 N.W.2d 308

(Minn. 1989) (choice-of-law pre-emption

waived).

be AEs ah. ee

ee eS ea See

Printing Division v. NLRB, 111 S.Ct.2215

(1991), this Court stated that it is "ba-

sic federal labor policy that ‘arbitra-

tion is a matter of contract'", Litton at

2222 (quoting United Steelworkers of

America v. Warrior & Gulf Navigation Co.,

363 U.S. 574, 582 (1960)); that "[nJo

obligation to arbitrate a labor dispute

arises solely by operation of law",

Litton at 2222 (quoting Gateway Coal Co.

v. Mine Workers, 414 U.S. 368, 374

(1974)); and “reaffirm({ed] .. . that un-

der the NLRA arbitration is a matter of

consent. .. ." Litton at 2222.

The First Circuit's distinction be-

tween choice-of-forum and choice-of-law

pre-emption recognizes that choice-of-

forum pre-emption in the labor law con-

text, as this Court held in Davis, is

integral to Congress's intention to have

the NLRB assume primary responsibility

for developing federal labor laws under

the NLRA. Through that mechanism, Con-

gress provided for uniform outcome, on a

national basis, of disputes arising under

the NLRA."®

The choice-of-law issue implicated

by this case is decidedly different.

Almost by definition, there can be no

interest in the uniform outcome of mat-

ters arising under collective bargaining

agreements. To the contrary, each arbi-

trator is expected to interpret and apply

Tt bears repeating, however, that

four members of the Davis Court disagreed

that Congress intended in establishing

the "jurisdiction" of the NLRB to

"threat(en] orderly judicial proceeding"

by precluding judicial waiver. Davis at

399 (Rehnquist, J., concurring, joined by

Powell, J., Stevens, J., O'Connor, J.)

(see text herein at page 22). They

believed this to be a "perverse applica-

tion" of "jurisdiction" by the Court. Id.

at 402.

the agreement according to its specific

language, viewed in light of the "common

law of the shop." United Steel Workers of

Ameri v. W j G vi j i. .

supra at 582.'’ So viewed, the interest

protected by choice-of-law pre-emption is

to encourage the parties resort to the

grievance-arbitration process. As has

been demonstrated (Argument I herein),

the ruling below does not threaten the

integrity of that process. Therefore,

the reliance of the First Circuit upon

the distinction in Davis of choice-of-

forum and choice-of-law pre-emption is

Indeed, there is no formal doctrine

of stare decisis in labor arbitration.

See generally F. Elkouri & E. Elkouri,

How Arbitration Works 414-419 (4th ed.

BNA 1985). Moreover, Given the relative

informality of grievance and arbitration,

and the multitude of arbitrators, there

is no assurance of uniformity of outcome

or interpretation even within the same

agreement, much less from one agreement

to another.

fully consistent with and does not under-

mine established labor policy.

CONCLUSION

Contrary to the representations made

by the petitioners in their Conclusion,

their petition does not involve any

"question that has divided the circuits"

with respect to whether a § 301 pre-

emption defense is waivable; and given

the numerous opportunities in the proce-

dure and trial practice to test the ap-

plicability of § 301, it does not appear

to be a recurring question - that many

litigants find themselves in the posture

of waiver as do the petitioners (Pet.

Cert. at 52-53). Moreover, this petition

does not present the question in a manner

appropriate for certiorari review. The

ruling of the First Circuit sought to be

reviewed is fully consistent with both

ta ou as, en ae a

federal labor policy and the need for

orderly judicial proceedings. According-

ly, the Petition for Writ of Certiorari

should be denied.

Respectfully submitted, :

pI © fn

Vy br LOY 2047_-

Charles M. Burnim

Counsel of Record

for Respondent

508 Donahue Building

Beacon Hill

41 Temple Street

Boston, Ma. 02114

617-573-8614

July 15, 1991

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