Petition for Writ of Certiorari — McCormick v. AT&T Technologies, Inc.

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BFFI@E OF THE CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

WILLIAM T. McCorRMICK,

. Petitioner,

AT & T TECHNOLOGIES, INC. and CAMERON ALLEN,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS H. ROBERTS

2nd Floor, Suite A

33 S. 13th Street

Richmond, VA 23219

MARSHA S. BERZON

177 Post Street

San Francisco, CA 94108

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® LEP 00

aa a aS as

QUESTIONS PRESENTED

1. Whether a state law cause of action filed in state

court by an employee covered by a collective bargaining

agreement is completely preempted by § 301 of the Labor

Management Act, 29 U.S.C. $ 185, and therefore remov-

able to federal court, where the claim as pleaded, and as

fairly read, does not necessarily require the interpreta-

tion or application of the agreement, yet the agreement’s

construction may be an issue in the event that the de-

fendant employer seeks to rely upon the agreement as

part of a negating or affirmative defense?

2. Whether a state law claim for intentional infliction

of mental distress filed in state court by an employee

covered by a collective bargaining agreement is com-

pletely preempted by LMRA § 301 and therefore remov-

able to federal court, whenever the actions complained of

involve workplace behavior by the employer or an agent

of the employer?

(i)

TABLE OF CONTENTS

SO gg el 8 8) ol |

TAbew OF AUTHORITINRG ...............--2..----000-0-cceseoeese- a

IRI OY ooo ose es cevenenseace--eectac coves cenivensanerienves

i oy 8 2g DoT WS PoP POE ATT

STATUTES INVOLVED ...... 5 PSone SEED PPD SOO EI

Bem emeeemeite OF Iti CASE. nn. .........e-2ccceeneneeceneenn-

ies os esctuhleccooseuesesticrtoresas

i. Ee fF poceeumes Below .....................................-....

(a) District Court Proceedings ........000....2000.000....

(b) Fourth Circuit Majority Opinion ..............

REASONS FOR GRANTING THE WRIT

a co <2 CLR MPa to Med ote oa

A. The Circuit Split on the Question Whether

LMRA §301 Preemption Analysis is Claim-

a anak eincecteecunnne

B. The Circuit Split on the Question Whether

LMRA § 301 Preempts State Causes of Action

for Intentional Infliction of Mental Distress. ___..

Se eg Ey | Sn

(b) The Sixth Circuit ........ 2 RSS RS eR

EN |

TE |

(e) TheSeventh Circuit 0.

ee nade eec con vandecewnasenseseverevsevecvense

ano —_—

TABLE OF AUTHORITIES

CASES Page

Allis-Chalmers Corp. v. Lueck. 471 U.S. 202

Ee oO Te ccdannic eta entice Gevemany ee neaaan 8, 16

Brown v. Southwestern Bell Telephone Co., 901

F.2d 1260 (Gth Cir. 1900) ..).........060cccccciecccns 17

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987). passim

Cook v. Lindsay Olive Growers, 911 F.2d 233

bie eter iy IP eh ota Ree Ren Aire 3A tl RBA 21

Douglas v. American Information Technologies

Corp., 877 F.2d 565 (7th Cir. 1989) _..... emia 23

Electrical Workers v. Hechler, 481 U.S. 851

(1967} ......... Srp RR ae Rect Pn ET et OF cared tate ee 8

Farmer v. United Brotherhood of Carpenters Local

Le: fie. @ . Rp |. y ¢ eee nennennna a LnnEenee 19

Fox v. Parker Hannifin Corp., 914 F.2d 795

(1990) pi free 12,19

Francise Tar Board 1 v. Construction Laborers Ve-

cation Trust, 468 US. 1 (1968) .............-...:...0.....: 15

Galvez v. Kuhn, 933 F.2d 733 (9th Cir. 1991)......8, 22, 23

Gully v. First National Bank, 299 F.2d 109

(1936) .. pe te sae ane PAIS el 8S. BLE aE 15

Hanks v. General Motors Corp., 859 F.2d 67 (8th

+) Ae |) . 12

Hanks v. General Motors: Core: 906 F.2d 341

‘4, | ere Eee es ae acu Vy Sie 20

Harris v. Alumax Mill Products, Fae. 897 F.2d

400 (9th Cir.), cert. denied, USS. oa

By A TD SO ooaeesp oe eee eee 21

Jackson v. Liquid Carbonic Corp., 863 F.2d ql

(det tie. See ........0-2...... 11

Johnson v. Anheuser Busch, Ince., 876 F.2d 620

(8th Cir. 1989) __.. et EAPPIURSAM Pete BSED ES OPS) MN PO 12, 20

Johnson v. Beatrice Foods Co., 921 F.2d 1015

D1: LS RS |_| aa aR Rea in ee cle spre wane 17

Keehr v. Consolidated Freightways of Delaware,

Ine., $26 F230 138 (7th Cit. ISTT) .«.........<2........ 22

Knafel v. Pepsi-Cola Bottlers of Akron, Inc., 899

Te Tate (Gee Git. ROO) o.cncvcece ee ee 19

Krashna v. Oliver Realty, Inc., 895 F.2d 111 (3rd

Cir. 1990) Feipckials iets a te ence 17,18

TABLE OF AUTHORITIES—Continued

Page

Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988)-....... 12

Lingle v. Norge Division of Magic Chef, Inc., 486

USS. 399 A) Eee ARE: OU ete terse neni passim

Local No. 57 v. Bechtel Power Corp., 834 F.2d 884

“Bl Ee SD: Se reieepetinn teed TEE Ser eE ama ssh 13

Magerer v. John Sexton & Co., 912 F.2d 525 (1st

> | ney hp ee NE PES UEN ia ce onl 11

Metropolitan Life Insurance Co. v. Taylor, 481

oe SS EG : 2 RR Ree nnn Re Re MOA erst 4k od. SERIES 15

Miller v. AT&T Network Services, 850 F.2d 543

(9th Cir. 1988) .. . 17, 30, 31,22

Newberry v. Pacific Racing Asse! ation, 854 F.2d

1142 (9th Cir. 1988) 12, S13

O’Shea v. Detroit News, 887 F.2d 683 (6th Cir.

UY elect de ete tees eae en: 12,18

Perugini v. Safeway Stores, Inc., 935 F.2d 1083

(9th Cir. 1991) 21

Schlacter-Jones v. General Telephone of Califor-

nia, 936 F.2d 435 (9th Cir. 1991) 12

Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th

Cir.), cert. denied, Us. ——, 116 3. Ct.

539 (1989)... eee 12

Steelworkers v. Raw son, oie A Ss. — 110 Ss. A

1904 (1999) Lites _ See inree ake 8

Stikes v. Chevron USA, Ine., 914 F.2d 1265 (9th

Cir. 1990) .. a IPO LT Rec 12

Teliez v. Pacifie Gas & Electric C6. 817 F.2d 53

(9th Cir.) cert. denied, 484 U.S. 908 (1967 }....::.. Bly ze

Utility Workers v. Southern California Edison,

852 F.2d 1083 (9th Cir. 1988) seteebiccdderiguic te ae

STATUTES

28 U.S.C. § 1441 . : Se ee 2

Labor ietecinans Relations Act

§ 301, 29 U.S.C. § 185 (a). Ee passim

IN THE

Suprenve Court of the United States

OCTOBER TERM, 1991

No.

WILLIAM T. MCCORMICK,

m Petitioner,

AT & T TECHNOLOGIES, INC. and CAMERON ALLEN,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner William T. McCormick hereby petitions this

Court to issue a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fourth

Cireuit in McCormick v. AT&T Technologies, Inc., et al.,

934 F.2d 531 (4th Cir. No. 88-8542, May 28, 1991) (en

bane).

OPINIONS BELOW

The en banc opinion of the United States Court of

Appeals for the Fourth Circuit is reported at 934 F.2d

531 (1991), and is reprinted in the separately bound ap-

pendix to this certiorari petition (‘“Pet. App.) at pp.

la-33a. The United States District Court for the Eastern

District of Virginia did not issue a written opinion; a

transcript of its oral opinion is reprinted at Pet. App. 35a-

39a, and a copy of the district court judgment is reprinted

at Pet. App. 34a.

JURISDICTION

The Fourth Circuit issued its en bane decision and

jedgment on May 28, 1991. On August 15, 1991, the

Chief Justice signed an order granting an extension of

time within which to file a petition for writ of certiorari

to and including September 25, 1991. This Court has

jurisdiction under 28 U.S.C. 1254(1).

STATUTES INVOLVED

Section 301l(a) of the Labor Management Relations

Act, 29 U.S.C. § 185(a), provides:

Suits for violation of contracts between an em-

ployer and a labor organization representing employ-

ees in an industry affecting 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 re-

spect to the amount in controversy or without regard

to the citizenship of the parties.

28 U.S.C. $ 1441 provides:

Except as otherwise expressly provided by Act of

Congress, any civil action brought in a state court

of which the district courts of the United States have

original jurisdiction, may be removed by the de-

fendant or defendants, to the district court of the

United States for the district and division embracing

the place where such action is pending. .. .

STATEMENT OF THE CASE

A. The Facts

Petitioner William T. McCormick was an employee of

respondent AT&T Technologies, Inc. (“AT&T” or the

“Company”) until his discharge in October, 1986. Me-

Cormick worked at a facility covered by a collective bar-

gaining agreement between AT&T and the Communica-

tions Workers of America. Although the incidents under-

lying this lawsuit occurred at about the same time as

McCormick’s termination, this suit seeks to recover for

injuries caused not by the discharge but by the Com-

pany’s handling of certain of petitioner’s personal

property. Pet. App. 2a-3a, 7a.

As an AT&T employee, McCormick was issued a secure

locker in which he kept both tools issued by his employer

and personal property. That property included a letter

from his ex-wife containing information that was private

and, if revealed, would be extremely embarrassing to

McCormick. Pet. App. 3a; Court of Appeals Joint Ap-

pendix (“C.A. Jt. App.”) 61-62.

In late September, 1986, McCormick was ill for several

weeks and did not report to work. Contending that

McCormick did not keep the Company adequately in-

formed about his absence, AT&T terminated his employ-

ment by a letter dated October 1, 1986. Pet. App. 2a.

The very next day, his supervisor cleaned out McCor-

mick’s locker and discarded his personal property, includ-

ing the letter from MeCormick’s ex-wife, in a trash re-

ceptacle accessible to all employees. A fellow employee

did, in fact, retrieve and pass the letter around to all the

employees on McCormick’s shift. Pet. App. 3a; C.A. Jt.

App. 55.

When McCormick received AT&T’s termination letter,

he contacted the Company and arranged a meeting to dis-

cuss the discharge. At that meeting, held on October 3,

1986, McCormick stated that he knew that all the em-

ployees on his shift had seen the letter in question, and

voiced his apprehensions on how its contents would be

used. As a result of the meeting, AT&T vacated McCor-

mick’s discharge and returned him to his former position

as of that night. Pet. App. 3a; C.A. Jt. App. 60-62.

As soon as McCormick arrived on the job, however, a

fellow employee made a personal remark to him based

upon the contents of the letter that caused petitioner such

embarrasment and distress that he asked to be allowed

to leave the plant immediately. When this request was re-

fused, McCormick left anyway, aware that his termina-

tion would be reinstated as a result. Pet. App. 3a; C.A.

Jt. App. 55.

B. The Proceedings Below

(a) District Court Proceedings: MeCormick filed a

common law tort suit in the Virginia courts seeking to

recover for the emotional and physical distress he suf-

fered as a result of the exposure of his private affairs to

a large number of his fellow employees. The complaint

alleged generally that MeCormick’s supervisor knew that

McCormick was in a weakened mental and emotional con-

dition; that the exposure of his personal property caused

McCormick mental, emotional and physical traumas; and

that McCormick’s supervisor knew or should have known

that these injuries would oceur from the actions taken

with regard to the disposal of petitioner’s property, but,

either negligently or intentionally, carried out those ac-

tions anyway. Four common law causes of action—for

intentional and negligent infliction of emotional distress,

conversion, and negligence in the care of a bailment—

were pleaded. Pet. App. 3a; C.A. Jt. App. 11-15.

AT&T removed the case to federal court, contending

that McCormick’s state tert causes of action are com-

pletely preempted by § 301 of the Labor Management Re-

lations Act (“LMRA”), 29 U.S.C. $185: that his claims

are in truth federal claims resting on the applicable ccl-

lective bargaining agreement: and that his case should

therefore be dismissed because barred by the applicable

$ 301 statute of limitations. C.A. Jt. App. 27-28.

On cross motions by MeCormick for a remand and by

AT&T for summary judgment, the district court refused

to remand the case to state court, and granted summary

judgment to the Company “|blecause the claims arise

from conditions of employment governed by a collective

bargaining agreement.” Pet. App. 39a.

(b) Fourth Circuit Majority Opinion: On appeal, the

Fourth Circuit decided, after briefing and argument in

front of a three-judge panel but before opinion by that

panel, to hear the case en banc. The full appeals court

divided 4-3 on the pivotal legal issue in the case.

Writing for the four-judge majority, Judge Chapman,

joined by Judges Russell, Widener and Wilkens, held that

there is “complete preemption” of the state law claim in

this ease under Allis-Chalmers Corp. v. Lueck, 471 US.

202 (1985), and its progeny. The majority held that

$301 completely displaces state law claims implicating

an employment relationship whenever resolution of the

claim could involve interpretation of an applicable collec-

tive bargaining agreement. As a consequence, the major-

ity held, this case arises under federal law, federal court

jurisdiction is proper, and the grant of summary judg-

ment for failure to meet the applicable statute of limita-

tions was correct. Pet. App. 13a-14a.

In the maiority’s view, each of McCormick’s common

law causes of action could be defended on the basis that

AT&T owed petitioner no state law duty to keep his

private property, locked in a secure locker, away from

fellow employees, because the collective bargaining agree-

ment authorized the Company to dispose of the property

as it did. Pet. App. 10a. In so ruling, the majority

pointed to no provision of the collective bargaining agree-

ment that regulates lockers or disposal of employee pri-

vate property generally, or that in terms permits AT&T

to expose an employee to public ridicule by allowing fel-

low employees access to embarrassing private property the

employee kept in a secure locker to which those employees

had no access. Rather, the Fourth Circuit majority relied

only upon a broad and vague management rights clause,

providing generally that “the right to manage the busi-

ness and to direct the working forces and operations of

the same, subject to the limitations of this Agreement, is

exclusively vested in, and retained by, the Company”.

Pet. App. 9a.

The majority below maintained that the answer to the

question whether AT&T is legally entitled under Virginia

law to dispose of McCormick’s property as the Company

did might ultimately involve arguments based upon the

interpretation of the management rights clause of the

collective bargaining agreement, as upon implied rights

and duties under the agreement. That possibility, ac-

cording to the majority, is sufficient to destroy petitioner’s

state tort law causes of action entirely. Pet. App. 9a-10a.

(ec) Fourth Cireuit Dissenting Opinion: Writing in

dissent, and joined by Judges Sprouse and Murnaghan,

Judge Phillips “disagree|d] fundamentally with the ma-

jority’s view of the way in which the preemptive effect

of § 301 upon state-law tort claims is to be analyzed.”

Pet. App. 19a.

Judge Phillips noted, first, that § 301 provides a federal

cause of action only for suits for violation of collective

bargaining agreements, not for suits “to enforce any

claim by a union-employee against his employer or union

that arises out of or is connected with his employment

relationship, or that somehow touches on matters that

might be the subject of labor relations.” Pet. App. 22a.

This Court’s § 301 preemption cases, in the dissent’s view,

consequently limit preemption to state-law claims explic-

itly alleging violations of labor contracts and those claims

that “can be determined to be claims for violations of

labor contracts in substance though not in form.” Pet.

App. 23a. And, as the dissent read this Court’s cases, the

latter category of cases can be determined by “focus[ing|

on where the claimant has located the duty allegedly

breached by the employer or union-defendant.” Pet. App.

23a ‘emphasis supplied).

Under this “claimcentered” approach (Pet. App. 26a),

there is no preemption as long as the claim as defined

under state law could impose a noncontractual duty and

the plaintiff does not rely on any contractual source for

the legal duty the defendant is alleged to have violated.

Where those conditions are met, then “a defendant’s

assertion ... that a labor contract’s terms provide either

a negating or affirmative defense to the claim are irrele-

vant to the preemption issue.” Pet. App. 27a. At the

same time, “to the extent that |the] ultimate resolution

[of the case] requires interpretation of a labor contract’s

terms, ... federal law controls the interpretation [only].”

Pet. App. 27a.

Applying this approach to the present case, the dissent-

ers concluded that, as pleaded, each of McCormick’s com-

mon law causes of action located the duty alleged to have

been violated in general state tort law duties owed to all

persons as a matter of law, and not in the collective bar-

gaining agreement or in any other contract. In the dis-

sent’s view, therefore, these state law claims can go

forward in state court, subject to the understanding that

AT&T is entitled to raise as a defense the contention that

the labor contract authorized the actions taken, so that

those actions could not be determined to be “‘outrageous’”’

“negligent” or “wrongful”. Pet. App. 28a-32a.

REASONS FOR GRANTING THE WRIT

Introduction

In a case decided exactly one week before the present

one—and in an opinion holding squarely the opposite of

the holding here—the Ninth Circuit began by stating

At first blush, both the rationale and method of

analysis in {Labor-Management Relations Act $ 301]

preemption cases are straightforward .... Nor are

we deprived of authoritative statements to guide our

way. Lingle [v. Norge Division of Magic Chef, Inc.,

486 U.S. 399 (1988) ] is one, Allis-Chalmers [Corp.

v. Lueck, 471 U.S. 202 (1985) ] is another.

In reality, section 301 has been the precipitate of

a series of often contradictory decisions, so much so

that “federal preemption of state labor law has been

one of the most confused areas of federal court litiga-

tion.” Note, The Need for a New Approach to Fed-

eral Preemption of Union Members’ State Law

Claims, 99 Yale L. J. 209 (1989). [Galvez v. Kuhn,

933 F.2d 773 (9th Cir. 1991).]

The Ninth Circuit’s characterization of the litigation

generated by LMRA § 301 preemption as “one of the

most confused areas of federal court litigation” is not

hyperbole but an eminently fair characterization of the

chaotic situation in the courts of appeals.

To be sure, this Court, recognizing the importance of

the questions presented here, has sought to delineate

for the lower courts the circumstances in which the

$301 federal common law of labor contracts precludes

state causes of action from going forward where the

plaintiff is an employee covered by a collective bargain-

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

202 (1985); Electrical Workers v. Hechler, 481 U.S. 851

(1987); Caterpillar, Inc. v. Williams, 482 U.S. 386

(1987) ; Lingle v. Norge Division of Magic Chef, Inc., 486

U.S. 399 (1988). See also Steelworkers v. Rawson, ——

U.S. ——, 110 S. Ct. 1904 (1990).

Despite the attention this Court has paid to this prob-

lem, however, the lower federal courts continue to be

flooded with cases raising § 301 preemption issues, and

continue to disagree with one another on the proper

method of analyzing these issues.

Indeed, the four-three division in the Fourth Circuit,

sitting en banc in the present case, is symptomatic of the

division in the circuits. Each opinion in the present case

relies on decisions from other circuits that do indeed

support that opinion, and that, by definition, are in hope-

less conflict with still other circuit court decisions. See

Pet. App. 29a n.4 (Phillips, J., dissenting) (conceding

that the majority opinion below properly notes that its

preemption holding on the intentiona! infliction of mental

distress count is in accord with those of three circuits, but

noting that two other circuits support the dissent’s view,

while a third has ruled both ways. )

This case squarely presents for decision two critical as-

pects of this continuing controversy:

First—as the compelling analysis in the dissenting

opinion in this case shows—-much of the confusion in the

lower courts results from a disagreement as to whether

§ 301 preemption law is “claim-centered”; viz., as to

whether preemption turns only upon the plaintiff’s need

to rely upon the applicable collective bargaining agree-

ment as one of the essential elements pleaded in the com-

plaint or turns as well on the need to consult that agree-

ment in resolving the case because the defendant intends

to rely on the agreement as a defense.

As to that question, there is the plainest of circuit

conflicts:

The First, Fourth, Eighth and Ninth Circuits hold that

a defendant can indeed defeat a state cause of action sim-

ply Ly announcing that the defendant intends in some way

to rely upon an applicable collective bargaining agree-

ment as part of its defense.

The Sixth and Tenth Circuits hold squarely to the op-

posite.

And, while both the language and the underlying ra-

tionale of this Court’s cases as a whole clearly favor the

approach of the dissent in this case—which is also the

approach of the Sixth and Tenth Circvits—there is at

least one sentence in Lingle v. Norge Division of Maqic

Chef, Inc., supra, that suggests otherwise, and that ap-

pears to be a contributing cause to the lower courts’ dis-

array. Pp. 10-16, infra.

Second, there is a multi-faceted circuit conflict—with a

split that does not precisely mirror the one as to the

“c'aim-centered” controversy—on whether state causes of

action for intentional infliction of emotional distress

growing out of the manner in which a discharge or other

discipline is carried out, available in a increasing num-

ber of states, are completely preempted by § 301 where

the plaintiff is covered by a collective bargaining agree-

ment.

The Fifth and Tenth Circuits agree with the majority

in the present case that such claims are preempted.

The Third Circuit agrees with the dissent below that

such claims are not preempted.

And, the Sixth, Seventh, Eighth and Ninth Cireuits all

hold that such claims may be preempted or not, yet apply

three different standards for separating preempted state

causes of action for intentional infliction of mental dis-

tress from those not preempted. Pp. 16-25, infra.

The attention this Court has paid to § 301 preemption

questions in recent years demonstrates the importance to

a coherent labor policy of a proper delineation of the role

of state law employment-related causes of action in a

workplace where a collective bargaining agreement gov-

erned by federal common law is in place. Since the com-

plexity of the $ 301 preemption issues presented here has

led to continuing circuit conflicts, it is imperative that

this Court once more draw the precise dividing line be-

tween the federal labor laws and state law.

A. The Circuit Split on the Question Whether LMRA

§ 561 Preemption Analysis is Claimcentered:

(1) In this case, as in many others, the state court

complaint did not in terms rely upon any collective bar-

gaining agreement at all, and there is no basis for read-

ing the complaint as necessarily relying on the applicable

agreement as the source of the legal duty the defendant

is alleged to have violated. To the contrary, the complaint,

fairly read, contends that under the applicable state law

the defendant employer owed to the plaintiff employee the

same duty the defendant would have owed to any individ-

ual over whose property, for whatever reason, the defend-

ant had custody, and that the defendant violated that

duty. C.A. Jt. App. 11-12, 14-15.

AT&T, however, has maintained that the Company is

entitled under state law to defend this case on the basis

that the broad management rights clause in, or in the

alternative some implied provision of, the collective bar-

gaining agreement affirmatively sanction its actions here.

It is AT&T’s position that simply by raising a labor-

contract-based defense—without regard to whether the

defense would turn out to have any merit if put to the

test—the Company renders petitioner’s state law cause of

action a legal nullity. Like the majority in this case,

the First, Eighth, and Ninth Circuits, have accepted this

breathtaking expansion of § 301 preemption.

For example, in Magerer v. John Sexton & Co. 912

F.2d 525 (1st Cir. 1990), the First Circuit addressed the

question of whether § 301 preempts a state law cause of

action for retaliatory discharge that differed from the

cause of action upheld against a preemption attack in

Lingle, supra, only in that the pertinent statute provided

a defense where “any right in this section is inconsistent

with an applicable collective bargaining agreement.” 912

.2d at 527, n.1. Because it would be necessary to con-

strue the collective bargaining agreement in order to eval-

uate any such defense if raised, the First Circuit held the

retaliatory discharge cause of action preempted. Jd. at

930-31. See also Jackson v. Liquid Carbonic Corp., 863

F.2d 111, 118 (1st Cir. 1988) (holding that a state cause

of action is preempted by § 301 as long as a waiver de-

fense is available under state law).

Similarly, the Ninth Circuit, in two cases, has held

that an employee’s state law privacy claim is preempted

whenever the defendant employer contends that the pri-

vacy right is waived by the management rights clause, or

some other provision, of the applicable collective bargain-

ing agreement. Utility Workers v. Southern California

Edison, 852 F.2d 1083, 1086-87 (9th Cir. 1988); Laws v.

Calmat, 852 F.2d 430, 433 (9th Cir. 1988) ; see also New-

berry v. Pacific Racing Ass’n., 854 F.2d 1142, 1146 (9th

Cir. 1988).!

And, the Eighth Cireuit, in Hanks v. General Motors

Corp., 859 F.2d 67, 70 (8th Cir. 1988), held emphaticaliy

that “defenses as well as claims must be considered in

determining whether resolution of the state law claim re-

quires construing the collective bargaining agreement.”

See also Johnson v. Anheuser Busch, Inc., 876 F.2d 620,

623 (8th Cir. 1989).

Just as emphatically, the Sixth Circuit has embraced

the “‘claim-centered” analysis articulated in the dissenting

opinion in this case, several times reiterating that “[i]t

is irrelevant to the preemption question whether or not

the employer can defend by showing it had the rights un-

der the collective bargaining agreement to do what it

did.” O’Shea v. Detroit News, 887 F.2d 683, 687 (6th

Cir. 1989) (emphasis added); see also Fox v. Parker

Hannifin Corp., 914 F.2d 795, 800 (6th Cir. 1990) (“a

defendant’s reliance on a [collective bargaining agree-

ment] term purely as a defense does not result in section

301 preemption”); Smolarek v. Chrysler Corp., 879 F.2d

1326, 1334 (6th Cir.) (en bane), cert. denied, USS.

, 110 S. Ct. 5389 (1989) (that the defendant may “as-

sert that its treatment of Smolarek was allowed or re-

quired by the terms of the collective bargaining agree-

ment ... does not support removal to federal court’’).

1In Stikes v. Chevron USA, Ine., 914 F.2d 1265 (9th Cir. 1990)

the Ninth Circuit similarly held that a state law privacy claim is

preempted by § 301, but did so on a slightly different basis than

Utility Workers and Laws: Stikes purported to view the collective

bargaining agreement not as a defense to a state law privacy cause

of action, but as part of the plaintiff employee’s prima facie claim

because pertinent to whether the employee’s claimed expectation of

privacy was reasonable. 914 F.2d at 1270. See also Schlachter-Jones

v. General Telephone of California, 936 F.2d 435 (9th Cir. 1991)

(adopting a similar approach). Neither Stikes nor Schlachter-Jones,

however, disavowed Utility Workers or Laws, but instead reiterated

their holdings. 914 F.2d at 1268; 936 F.2d at 439-41.

Similarly, the Tenth Circuit, in Local No. 57 v. Bech-

tel Power Corp., 834 F.2d 884, 889 (10th Cir. 1987),

held that even if a state court “would find the collective

bargaining agreement relevant to show waiver or consent

as a state-law defense to plaintiffs’ allegations,” there

would still be no complete § 301 preemption of a state

law claim, and no federal court jurisdiction over such a

claim.

In short, a more direct and pronounced difference

among the courts of appeals on a basic issue critica} to

the decision of a recurrent issue of federal law—and, in-

deed, of federal jurisdiction—is difficult to imagine.

(2) One would think, from the deep split in the cir-

cuits as to the impact of collective-bargaining-agreement-

dependent defenses on § 301 preemption analysis, that

this Court’s cases do not address the issue. To the con-

trary, in Caterpillar, Inc. v. Williams, supra, one ques-

tion directly raised was whether “§ 301 preempts a state-

law claim even when the employer raises only a defense

that requires a court to interpret or apply a collective bar-

gaining agreement,” and the Court was equally direct in

answering that question in the negative:

It is true that when a defense to a state claim is

based on the terms of a collective bargaining agree-

ment, the state court will have to interpret that agree-

ment to decide whether the state claim survives. But

the presence of a federal question, even a § 301 ques-

tion, in a defensive argument does not overcome the

paramount policies embodied in the well-pleaded com-

plaint rule—that the plaintiff is the master of the

complaint, that a federal question must appear on the

face of the complaint, and that the plaintiff may, by

eschewing claims based on federal law, choose to have

the cause heard in state court. When a plaintiff in-

vokes a right created by a collective-barzaining agree-

ment, the plaintiff has chosen to plead what we have

held must be regarded as a federal] claim, and removal

is at the defendant’s option. But a defendant cannot,

merely by injecting a federal question into an action

that asserts what is plainly a state-law claim, trans-

form the action into one arising under federal law.

[482 U.S. at 398-99 (emphasis in original) .]

To be sure, as Judge Phillips notes in the dissent in this

case (Pet. App. 24a-25a), there is one passage in this

Court’s Lingle opinion that could be read to suggest that

in determining § 301 preemption issues, it is proper to an-

ticipate defenses that may be raised and to determine

whether it will be necessary to construe or apply the col-

lective bargaining agreement in adjudicating those de-

fenses. See 486 U.S. at 407 (surveying the elements of

the plaintiff’s case in a state law retaliatory discharge

proceeding, and the elements of the defense thereto, and

concluding, “Thus, the state-law remedy in this case is ‘in-

dependent’ of the collective bargaining agreernent in the

sense of ‘independent’ that matters for § 301 preemption

purposes: resolution of the state-law claim does not re-

quire construing the collective-bargaining agreement.”’ )

There is, however, no indication that Lingle intended so

casually to overrule Caterpillar on a question directly

raised and decided only in the earlier case. To the con-

trary, Lingle elsewhere in the opinion relies heavily upon

Caterpillar, quoting language from Caterpillar that in-

corporates Caterpillar’s “claim-centered approach.” * And,

Lingle also takes care to recognize that there may be

cases in which there is a question concerning the interpre-

2 That passage reads in part:

“Section 301 governs claims founded directly on rights created

by collective-bargaining agreements, and also claims ‘substan-

tially dependent on an analysis of a collective-bargaining agree-

ment’.... [Clontrary to Caterpillar’s assertion, . . . respond-

ents’ complaint is not substantially dependent upon interpreta-

tion of the collective bargaining agreement. It does not rely

upon the collective agreement indirectly, nor does it address

the relationship between the individual contracts and the col-

lective agreement.” [486 U.S. at 410, n.10 quoting Caterpiliar,

482 U.S. at 394-95 (emphasis supplied). |]

tation of a collective bargaining agreement but no § 301

preemption; in that event, said the Lingle Court, “federal

law would govern the interpretation of the agreement,

but the separate state law analysis would not thereby be

preempted.” 486 U.S. at 413 n.12. There can, of course,

be no such cases under the complete preemption approach

espoused by the majority below.

It is equally to the point that where, as in this case,

suit is originally filed in state court, general principles of

federal jurisdiction preclude reliance upon a federal de-

fense as a basis for removal. Franchise Tax Board v.

Construction Laborers Vacation Trust, 463 U.S. 1, 12

(1983); Gully v. First National Bank, 299 U.S. 109, 112-

113 (1936). That principle is reiterated at the outset of

Caterpillar, 482 U.S. at 391-92, and is referred to in the

passage quoted above holding that a defense based upon

a collective bargaining agreement is not a basis for § 301

preemption. Thus, to read the Lingle opinion as holding

otherwise would be to construe Lingle not only as over-

ruling Caterpillar but also as putting into question one of

the most basie rules of “[t]he century-old jurisdictional

framework governing removal of federal question cases

from state into federal courts,” Metropolitan Life Insur-

ance Co. v. Taylor, 481 U.S. 58, 68 (1987).

Caterpillar’s conclusion regarding the “claim-centered”’

nature of $301 preemption is, moreover, the conclusion

that is fully consistent with both the language and the un-

derlying purposes of $301: As Judge Phillips noted be-

low, the federal statute provides federal jurisdiction and

federal substantive law only where the plaintiff seeks to

adjudicate his/her contract-based rights, either in form

or in substance. Pet. App. 23a. Unless § 301 preemption

is similarly limited, the result would be to destroy state

causes of action, even though there is no suitable federal

substitute. Indeed, employers could achieve this result by

raising frivolous defenses; viz., defenses that would have

little or no chance of success if adjudicated on the merits.

The animating consideration underlying § 301 preemp-

tion—the assurance of uniformity in the interpretation

and application of collective bargaining agreements “—can,

moreover, be fully achieved without thus sacrificing the

state law rights of employees covered by collective bar-

gaining agreements. As Judge Phillips explained in his

dissent, under the “claim-centered” approach while the

plaintiff employee’s state law

action is to be resolved under state law ... to the

extent that its ultimate resolution requires interpreta-

tion of a labor contract’s term, .. . federal law con-

trols the interpretation. [Pet. App. 27a (emphasis in

original). ]

Thus, Caterpiliay’s conclusion that § 301 preemption

is “claim-centered” is entirely correct. At the same time,

since the confusion sowed by the courts of appeals’ va-

rious readings of Lingle has led to a sharp cleavage

among the circuits on the question whether anticipated

defenses should be taken into account in determining

$ 301 preemption, this Court should grant certiorari to

clear up this matter once and for all.

B. The Circuit Split on the Question Whether LRMA

§ 301 Preempts State Causes of Action for Intentional

Infliction of Mental Distress:

(1) The courts of appeals are divided not only on the

proper overall approach to analyzing § 301 preemption

3 See, e.g., Allis-Chalmers Corp. v. Lueck, supra, 471 U.S. at 210-11:

if the policies that animate § 301 are to be given their proper

range ,.. the pre-emptive effect of § 301 must extend beyond

suits alleging contract violations. ... The interests in inter-

pretive uniformity and predictability that require that labor-

contract disputes be resolved by reference to federal law also

require that the meaning given a contract phrase or term be

subject to uniform federal interpretation. Thus, questions

relating to what the parties to a labor agreement agreed, and

what legal consequences were intended to flow from breaches

of that agreement, must be resolved by reference to uniform

federal 'aw, whether such questions arise in the context of a

suit for breach of contract or in a suit alleging liability in

tort

problems but on the specifies of whether the increasingly

common state causes of action for intentional infliction of

emotional distress are preempted by $301 where the

plaintiff employee is covered by a collective bargaining

agreement.

The Fourth Circuit majority in this case held that such

causes of action are completely preempted by § 301 be-

cause contractual considerations are necessarily relevant

in determining whether or not particular behavior is

“outrageous and intolerable”, an element of the state tort

cause of action. Pet. App. 10a.

The Fifth and Tenth Circuits have adopted essentially

the same approach, and reached the same result. Brown

v. Southwestern Bell Telephone Co., 901 F.2d 1250, 1256

(Sth Cir. 1990) ; Johnson v. Beatrice Foods Co., 921 F.2d

1015 (10th Cir. 1990). See also Miller v. AT&T Network

Services, 850 F.2d 543 (9th Cir. 1988) 4

At the same time, as the Tenth Cireuit expressly notes

in Johnson v. Beatrice Foods, supra, “other circuits have

reached varying results when applying the Allis Chalmers

and Lingle holding to state tort claims for intentional in-

fliction of emotional distress.” 921 F.2d at 1021. The

other circuits referred to are the Third, Sixth, Seventh,

Eighth and Ninth and we now detail the resulting multi-

faceted circuit split.

(a) The Third Circuit: Among the cases cited in

Johnson v. Beatrice Foods, supra, as reaching “conflicting

results,” to that reached by the Fourth, Fifth and Tenth

Circuits is Krashna v. Oliver Realty, Inc., 895 F.2d 111

(3rd Cir. 1990).

* While the Miller case embraces the premise that the collective

bargaining agreement is necessarily relevant in such cases in order

to determine whether the employer’s behavior is sufficiently “out-

rageous,” the Ninth Circuit has not followed that premise to the

conclusion that $301 uniformly preemnts all intentional infliction

of mental distress cases, Sce p. 21, infra,

In Krashna, the Third Cireuit squarely held that, as a

general matter, claims by employees covered by a collec-

tive bargaining agreement for intentional infliction of

emotional distress are not preempted because such claims

are “clearly outside the scope of the collective bargaining

agreement and § 301 of the LMRA.” 895 F.2d at 114.

It is plain from the Krashna opinion that the Third Cir-

cuit so holds even where the employer’s actions alleged

as tortious involve employment conditions arguably com-

mitted to managerial discretion as an ordinary matter.

See 895 F.2d at 115 n.5 (allegations of harassment in the

complaint included ordering the plaintiff to work contrary

to doctor’s orders, unjustified disciplinary warnings, and

unfair work assignments).

Under the Fourth Circuit’s approach in this case,

focussing upon whether the state cause of action arises

from a working condition that may be implicated by the

applicable collective bargaining agreement, the intentional

infliction claim in Krashna would certainly have been

preempted.

(b) The Sixth Circuit: The law in the Sixth Circuit

is along the same line as—but slightly more complex than

—the law in the Third Circuit.

O’Shea v. Detroit News, supra, 887 F.2d at 687,

arose when the employer allegedly transferred an elderly

employee covered by a collective bargaining agreement to

a night shift, knowing that the employee had health prob-

lems, in order to force him to retire. Because “the News

could have tortiously caused O’Shea emotional distress

without violating the contract”, the Sixth Circuit held the

cause of action not preempted. Jd. (emphasis added).

Here, as well, the state court complaint does not con-

tend that the actions taken by AT&T were in violation of

the collective bargaining agreement. Thus, under the

standard applied in O’Shea, the present cause of action

for intentional infliction of emotional distress could not

be preempted.

In two later cases, Knafel v. Pepsi-Cola Bottlers of

Akron, Ine., 899 F.2d 1473, 1483 (6th Cir. 1990) and

Fox v. Parker Hannifin Corp., supra, 914 F.2d at 795,

the Sixth Circuit elaborated upon the standard applicable

to the s 301-preemption-of-intentional-infliction-of-mental-

distress cases. Drawing on this Court’s holding in

Farmer v. United Brotherhood of Carpenters Local 25,

430 U.S. 290, 302 (1977), the Sixth Circuit stated that

state causes of action for intentionally inflicting emo-

tional distress are not preempted as long as the claimed

injury flows from the abusive manner in which the em-

ployer exercises its proper authority under the collective

bargaining agreement (or fails to do so), and not from

the “routine exercise of | collective bargaining agreement |

rights” alone. Fox, 914 F.2d at 802; see also Knafel, 899

F.2d at 1488.

The Fourth Circuit majority in this case recognized no

such distinction; had the majority below done so, its deci-

sion would have had to be that petitioner’s claim is not

preempted by § 301." Nor have the Fifth or Tenth Cir-

cuits suggested any “abusive manner” limit to cheir broad

s 301 rule preempting intentional infliction of emotional

distress causes of action.

(ec) The Eighth Circuit: The Eighth Cireuit also holds

that most intentional infliction causes of action arising

in a workplace covered by a collective bargaining avree-

ment are not preempted by § 301, applying a different

standard for making this distinction than the one sug-

gested in the most recent Sixth Circuit cases.

* Petitioner’s intentional infliction cause of action does not seck

to recover for emotional injuries caused by the fact that the em-

ployer cleaned out McCormick’s locker and discarded his private

property. Rather, the injury for which damages are sought flowed

from the manner in which the property was discarded: viz., in full

view of petitioner’s fellow employees, so that they were able to re-

cover and read petitioner’s private papers.

Thus, the most recent Eighth Circuit decision—Hanks

v. General Motors Corp., 906 F.2d 341, 344 (8th Cir.

1990)—holds that § 301 does not preempt a state inten-

tional infliction cause of action where the employer as-

signed an employee covered by a collective bargaining

agreement to work under a supervisor whom the employer

knew had sexually assaulted the employee’s daughter. In

so doing, the Eighth Circuit expressly disagreed with the

Ninth Cirecuit’s approach in Miller v. AT&T Network

Service, supra, in this regard (and therefore with the

approach followed by the Fourth Circuit here, which

parallels the Miller approach). Hanks, 906 F.2d at 344

n.4 (“Inasmuch as the opinion in Miller v. AT&T Net-

work Services ... would suggest a result different from

the one indicated . . ., we disagree.” )

At the same time, Hanks distinguished Johnson v. An-

heuser Busch, supra, finding preemption of an intentional

infliction claim, on the basis that in Johnson, but not

Hanks, the essence of plaintiff's cause of action was

that the discharge was totally improper under the ap-

plicable collective bargaining agreement and therefore

“outrageous.” Hanks, 906 F.2d at 344."

The Eighth Circuit, then, holds that intentional] inflic-

tion claims are § 301 preempted only where an alleged

labor contract violation is itself the primary basis for

demonstrating that the employer’s behavior comes within

the narrow range of egregious behavior that supports an

intentional infliction cause of action. That the action

complained of involved a working condition and, accord-

ing to the employer, complied with the contract is not

a sufficient basis for § 301 preemption. In the iatter

regard, the Eighth Circuit law is in direct conflict with

the § 301 preemption law in the Fourth, Fifth and Tenth

‘In Ilanks, for example, the employer apparently contended that

its actions were in compliance with the collective bargaining agree-

ment and, therefore, the employer could not be found to have be-

haved in an “outrageous” manner. 906 F.2d at 344.

Cireuits and in some tension with the law of the Sixth

Cireuit.?

(ad) The Ninth Circuit: Like the Sixth and Eighth Cir-

cuits, the Ninth Circuit, which has decided the largest

number of cases in this area, finds some state law inten-

tional infliction cases preempted by § 301 but allows

others to go forward. Compare, e.g., Miller v. AT&T

Systems, supra, with Galvez v. Kuhn, supra; see also,

e.g., Cook v. Lindsay Olive Growers, 911 F.2d 233, 239-

40 (1990); Harris v. Alumax Mill Products, inc., 897

F.2d 400, 402 (9th Cir.), cert. denied, US. ;

111 S. Ct. 102 (1990); Newberry v. Pacific Racing As-

sociation, supra, 854 F.2d at 1150 (preempted); Tellez

v. Pacifie Gas & Elec. Co., 817 F.2d 53 (9th Cir.), cert.

denied, 484 U.S. 908 (1987) (not preempted) ; Perugini

v. Safeway Stores, Inc., 935 F.2d 1083, 1085 (9th Cir.

1991) (partially preempted and partially unpreempted).

But the Ninth Circuit’s governing preemption standard

for these kinds of cases is not the same as the standard

applied in either the Sixth or the Eighth Circuit toward

the same end.

The most fully reasoned Ninth Circuit decision, Galvez

v. Kuhn, supra, first notes that the Ninth Circuit has

heen more receptive to § 301 preemption claims of inten-

tional infliction causes of action than the Seventh and

Kighth circuits and then takes pains fully to review and

explain the state of the Ninth Circuit’s cases in this area.

933 F.2d at 779.* Having done so, Galvez concludes that

7 Again, had the Eighth Circuit’s standard been applied here,

there could have been no basis for a preemption finding: Petitioner's

state law intentional infliction cause of action does not depend upon

a finding that AT&T violated the applicable collective bargaining

agreement by cleaning out his locker upon his termination, or even

that AT&T violated the agreement by the manner in which the

Company cleaned out the locker.

* Galvez involved a situation in which a supervisor subjected the

plaintiff employee both to racial slurs and to being required to work

in the Ninth Circuit, there is no § 301 preemption of an

intentional infliction tort cause of action where “‘[t|he

employer’s claim revolved around conduct by his empioyer

that is not even arguably sanctioned by the labor con-

tract.’” 933 F.2d at 780.°

Thus, while the Eighth Circuit will not consider an

employer’s anticipated defense of compliance with the

collective bargaining agreement at all, the Ninth Circuit

makes an anticipatory reading of the collective bargaining

agreement to determine whether the employer’s antici-

pated defense has any realistic chance of success. And,

the Sixth Circuit’s substance,manner distinction is ap-

parently of no moment in the Ninth Circuit.

(e) The Seventh Circuit: We have left the Seventh

Circuit to last since that court, too, has held state

intentional infliction of mental distress claims sometimes

preempted by § 301 and sometimes not preempted but

without making it entirely clear what standard governed

in making this distinction. So far as appears from its

opinions, however, the line of demarcation in the Seventh

Circuit is closest to the Ninth Circuit’s line as fully

articulated in the Galvez v. Kuhn ease just discussed.

Keehr v. Consolidated Freightways of Delaware, Inc.,

825 F.2d 133, 187 (7th Cir. 1977), for example, holds

an intentionalivy speeded-up conveyor belt, making the working con-

ditions physically dangerous.

® Similarly, Tellez v. Pacific Gas & Elec. Co., supra, found non-

preemption of a claim of emotional distress based upon the em-

ployer’s distribution of a defamatory letter because “| t|he collective

bargaining agreement does not envision such behavior.” 817 F.2d

at 539; see also Miller v. AT&T Systems, supra, 850 F.2d at 550 n.5

(finding preemption, but distinguishing Tellez on this basis}.

Again, under the Ninth Circuit’s standard, the Fourth Circuit’s

conclusion in this case could not stand: The collective bargaining

agreement in this case did not affirmatively “sanction” the discard-

ins of petitioner’s very personal papers in full view of fellow em-

plovees; and mere “[c]ompliance with the [collective bargaining

agreement| ... cannot temper the potentional outrageousness of

the conduct.” Galvez v. Kuhn, supra, 933 F.2d at 780.

that a state intentional infliction of mental distress claim

based upon the use of abusive language by a supervisor

is not § 301 preempted. The Seventh Circuit reached this

conclusion even though the employee’s contention was that

the incident was part of a campaign to provoke a basis

for discharge, and even though the emplovee could have

filed a grievance against the employer to protest the inci-

dent. 825 F.2d at 136, 138.

On the other hand, Douglas v. American Information

Technologies Corp., 877 F.2d 565 (7th Cir. 1989), while

explicitly recognizing Keehr as good law, 877 F.2d at

571, announced that there is § 301 preemption wherever

the “intentional infliction of emotional distress clair con-

sists of allegedly wrongful acts directly related to the

terms and conditions of her employment,” id. at 572, n.10.

Keehr was different, said the Seventh Circuit, because

“the plaintiff's claim ‘revolved around conduct by his

employer that is not even arguably sanctioned by the labor

contract.’” 877 F.2d at 572, quoting Keehr, 825 F.2d

at 138 n.6.

* * oe *

In sum, the various courts of appeal have articulated

sharply conflicting standards—and reached irreconcilable

results—in the cases concerning whether employees cov-

ered by collective bargaining agreements can maintain

state law causes of action for intentional infliction of

emotional distress against thier employers. And, as the

sheer number of cases addressing this issue in the last

three years indicates, the issue is one of recurring im-

portance in the federal! courts.'®

The above citations do not exhaust the court of appeals cases

in which § 301 preemption of intentional infliction claims was at

issue; there are other cases, for example, in the First, Fourth, and

Ninth Circuits which either repeat the same standards and results

or do not reach the merits. And, of course, for each reported court

of appeals case there is, in all likelihood, an unreported appellate

case and several district court cases, reported and unreported. In-

deed, the district court in this case regarded the issue as so routine

(2) The conclusion reached by the Fourth Circuit ma-

jority here is not only in conflict with the conclusions

reached by other circuits, it is wrong. Section 301 pre-

emption cannot be stretched so far as to defeat an em-

ployee’s state law claim against his/her employer for

intentional infliction of emotional distress where state

law, and not the applicable collective bargaining agree-

ment, is alleged to prohibit the employer from acting in

that manner.

A labor contract’s management rights clause, such as

the one relied uopn here, simply maintains management’s

state law discretion over certain areas of its business, a

discretion that nonunion employers enjoy without regard

to any collective bargaining agreement. A management

rights clause, in other words, does not create any rights

the employer does not have as a matter of state law. That

being so, there is plainly no federalism reason why an

employer covered by a management rights clause should

be able to exercise this discretion in a manner that, as a

matter of state law, is generally considered “outrageous

and intolerable”, when nothing in the agreement requires

that the employer so behave."

To preempt state law intentional infliction causes of ac-

tion simply because the applicable labor contract does not

forbid management’s actions vindicates no federal inter-

est. Such a rule does nothing but provide an unmerited

advantage to employers covered by collective bargaining

agreements over employers who have no such agreement

that all that was necessary was a bench announcement of the ruling.

Pet. App. 35a-39a.

11 This is not to say that the employer should not be permitted to

offer its argument that the fact that a labor contract permits the

challenged behavior demonstrates that the behavior is not sufficiently

outrageous to be tortious. That contract-based argument can be

decided under federal law, as the dissent in this case shows, with-

out throwing out the plaintiff’s state law cause of action in its

entirety. See Pet. App. 27a.

by permitting the former but not the latter to exercise

their management discretion in an intolerable manner

even though the State has determined to forbid all em-

ployers from so doing.

CONCLUSION

For the reasons state above, this Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,