Petition for Writ of Certiorari — National Steel Corp. v. White

pups} lay Wwe

St ae }

| SEP 26 1992

@FFICE OF THE CLERK

91-527 4

No. 91-

In the

Supreme Court of the United States

October Term, 1991

NATIONAL STEEL CORPORATION,

Petitioner,

VS.

Arthur Dale White, James Anderson, James H. Baker, Thomas

A. Balon, Richard S. Barber, Larry G. Bell, David S. Bickler,

Robert L. Billick, Edward Bittner, Todd A. Blair, Richard

Blancato, Robert A. Bray, Jr., Harry V. Brown, Jr., James

H. Browning, James William Bulloy ., Charles A. Clark, Edward

Dhayer, Ralph Anthony DiBacco, William R. Duncan, Jr.,

Domenic F. Frio, Dorsey R. Garrett, William F. Garrison,

James A. Gracie, III, Thomas M. Grishkevich, David

R. Harbin, James W. Hazlett, Rena Hess, Phillip E. Johnson,

Jerry G. Jones, Robert L. Jones, Joseph P. Karas, Bartley

Robert Kirkbride, Lloyd A. Klages, David J. Kondik, Frank

W. Kruger, Jr., Charles L. Lacey, Timothy C. Lawson, Ernest

H. McCormick, Joseph W. Mayernick, Boley Dale Mermon,

Patricia Mlodzik, Charles D. Murray, Dale E. Poole, Charles

Prince, Larry C. Riggle, William B. Riggs, Robert J. Ryan, Jr.,

John S. Sciance, Kenneth M. Seiple, John R. Selmon, Jr.,

Dennis D. Shirer, Ronald L. Spring, Rober: L. Sutton, Frederick

C. Tate, Stephen F. Tucker, Hoy L. Van Horn, Frederick

R. Welshans, Charles F. West, Donald L. White, John

W. Cominsky, Walter F. Mrozek, Dominic A. Tedeschi, Jr.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Cart H. HELLERSTEDT, JR. Three Gateway Center

(Counsel of Record) 15th Floor East

Cart N. FRANKOVITCH Pittsburgh, PA 15222

JOHN A. McCreary, JR. (412) 392-2300

VOLK, FRANKOVITCH, ANETAKIS, Counsel for Petitioner

RECHT, ROBERTSON & HELLERSTEDT

i

QUESTIONS PRESENTED FOR REVIEW

1. Are state law claims which assert breach of individ-

ual contracts to return employees to their former collective

bargaining unit positions, and to restore to them the full

measure of their bargaining unit seniority, sufficiently

independent of the collective bargaining agreements

addressing the ability to return to the unit, and which

create and define unit seniority, to escape federal preemp-

tion under Section 301(a) of the Labor-Management Rela-

tions Act, 29 U.S.C. §185(a)?

2. Does the federal common law of labor relations,

require that these state law claims be recharacterized as

federal claims justiciable only under federal law?

ll

PARTIES TO THE PROCEEDINGS BELOW

The parties to the proceedings in both the district

court and the court of appeals are identified in the caption

of the case.

National Steel Corporation, Petitioner herein, is a pri-

vately held corporation. Thirty percent (30%) of the capital

stock of National Steel is owned by NII Capital Corpora-

tion, a wholly-owned subsidiary of National Intergroup,

Inc. (“NII’’). NII is a publicly held corporation. The

remaining seventy percent (70%) of the capital stock of

National Steel Corporation is owned by N.K.K. U.S.A.

Corporation (“NKK USA”). NKK USA is a wholly-owned

subsidiary of NKK Corporation, a Japanese corporation.

National Steel Corporation (NSC) has an ownership

interest in the following non-wholly owned subsidiaries,

defined as a company subject to control by NSC: Mathies

Coal Company. NSC owns 86.6% of the stock of Mathies

Coal Company. The remainder of the stock of Mathies

Coal Company is owned by Stelco Coal Company.

NII has an ownership interest in the following addi-

tional non-wholly owned subsidiaries: Foxmeyer Corpora-

tion and Starcom International Inc. NII owns approxi-

mately 67% of the stock of Foxmeyer Corporation, the

remainder of which is publicly traded. Starcom Interna-

tional, Inc. is an inactive corporation and the remaining

20% of the stock is privately held.

Neither NKK USA nor NKK Corporation have non-

wholly owned American subsidiaries.

ill

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .......

PARTIES TO THE PROCEEDINGS BELOW .....

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

ee

a

1. The P&M Bargaining Unit...........

2. The SNE Bargaining Unit...........

3. Respondents’ Claims and Their Dispo-

a

REASONS FOR GRANTING THE WRIT

A. Respondents’ State Law Claims Are Not

Independent of the Collective Bargaining

ns eS kia wa ae vine vss

B. Principles of Federal Labor Law Preclude

Maintenance Under State Law of Respon-

ee eceee

C. The Lower Courts Are Divided On The

Preemption Issues Raised In This Petition . .

ee cea cece ccc scaces

re

..14

re

.24

—_

iv

TABLE OF AUTHORITIES

CASES

Page

Aeronautical Ind. Dist. Lodge 727 v. Campbell,

SE I io gi a al Senate 16

Allis-Chalmers Corp. v. Lueck,

Pe Se SS ho oie oe 8G re keeles passim

Avco Corp. v. Aero Lodge 735, 390 U.S. 557 (1968) ...20

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) ....... 13, 23

Berda v. CBS, Inc., 881 F.2d 20 (3d Cir. 1989), cert.

denied, 110 S.Ct. 879 (1990). ..............00.. 26

Bowen v. United States Postal Service,

Pa eS) an a a 21

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

Chemical Workers v. Pittsburgh Plate Glass Co.,

gk es : , ) Ren A ee 21, 22

Cooper v. General Motors Corp., 651 F.2d 249

St SEs oss cc's oa ve a awe a 4 ble e les 16

_ Electrical Workers v. Hechler, 481 U.S. 851 (1987)....14

Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964)...... 22

Groves v. Ring Screw Works, 111 S.Ct. 498 (1990) ... .20

Holland v. National Steel Corp., 791 F.2d 1132

NG Fos ee icc aa ce en deeekuewens 27

Ingersoll-Rand Co. v. McClendon, 111 S.Ct. 478

DC Oaths Sar re Ah are Sei 17, 20

J.I. Case Co. v. NLRB, 321 U.S. 332 (1944) .. .13, 23, 26

Kern v. United Steelworkers, 669 F.Supp. 701

Se OPE Sorat cer wea Leu cer ees 16, 27

Page

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

I a oS i pa ee Wa age 14, 15, 16

Malia v. RCA Corp., 794 F.2d 909 (3d Cir. 1986),

cert. denied, 482 U.S. 927 (1987)............... 25

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58

aR Ree at IRV SEER ce oe 17

Pilot Life Ins. Co. v. Dedaux, 481 U.S. 41 (1987) ..... 17

Redmond v. Dresser Industries, Inc., 734 F.2d 633

ww eaeeeces 27

San Diego Building Trades Council v. Garmon,

I 0 hn cohen wed Weccbececsccess 23

Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1983) ...... 16

Sutton v. Weirton Steel Division, Nat'l Steel Corp.,

724 F.2d 406 (4th Cir. 1983), cert. denied, 467

ee i ca se cuvecceecwkeseuk 2,8

Teamsters v. Lucas Floor Co., 369 U.S. 95 (1962). .... 23

Textile Workers v. Lincoln Mills, 353 U.S. 448

eee wee tinder tke ees 19

Ulrich v. Goodyear Tire & Rubber Co., 884 F.2d 936

I gk re chat a ae: 16, 23, 24

United Auto Workers v. Yard-Man, Inc., 716 F.2d

1476 (6th Cir. 1983), cert. denied, 465 U.S. 1007

(Ba i ine ln Be so ats Pan RG 22

United Steelworkers of America v. Rawson, 110 S.Ct.

oc va baw uir sun eee 4 sa 14, 16, 21

William E. Arnold Co. v. Carpenters District

Comerel, 27 US. 12 ISTO . on occ ce cceess 20, 23

vi

Page

STATUTES

28 USAC. GEE es ek ie cae 08 l

28 USA. SEAR ts etree races ces cees 3, 12

28 USAC. SG ee ee eae week ec wness 3

28 U.S.C, GRP os cc ee eas ewes es l

29 U.S.C. GRR eke ee ee a ck wie a 21

29 USAC. SESB. 26 cace ee ee cee es passim

29 U.S.C. GE RRR ai oc eeee ce ee 17

l

OPINIONS BELOW

The opinion of the district court is reported at 742

F.Supp. 312 (N.D.W.V. 1989) and is reprinted in Appen-

dix “A” at pp. la-69a. The opinion of the United States

Court of Appeals for the Fourth Circuit is reported at 938

F.2d 474 (4th Cir. 1991) and is reprinted in Appendix “*C”

at pp. 83a-120a.

JURISDICTION

This Petition requests the Court to exercise its discre-

tionary power of review on writ of certiorari, 28 U.S.C.

§1254(1). The judgment of the Fourth Circuit Court of

Appeals for which review is sought was entered on July 3,

1991. This Petition is filed within the time limits pre-

scribed by 28 U.S.C. §2101(c).

PERTINENT STATUTES

This Petition raises issues concerning the preemptive

scope of Section 301 of the Labor-Management Relations

Act of 1947, 29 U.S.C. §185. Section 301 provides in rele-

vant part as follows:

(a) Suits for violation of contracts between an

employer and a labor organization representing

employees 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 respect to the amount in controversy or with-

out regard to the citizenship of the parties.

2

STATEMENT OF THE CASE

A. Procedural History

Petitioner, National Steel Corporation (‘National’)

for many years operated an integrated basic steelmaking

plant located in Weirton, West Virginia.' The Respondents

were initially employed in bargaining unit positions and

later promoted to salaried first level plant management

positions, i.e., foremen. At the time of their promotions,

Respondents allege, inter alia, that National promised

them that they could return to their former bargaining unit

jobs if they later so desired and that upon a return, they

would have their full seniority rights restored, i.e., be

treated for seniority purposes as if they had never left the

bargaining unit. This litigation arises out of the layoffs of

Respondents at various times during 1982. When National

laid off the Respondents from their management positions,

it did not return them to the bargaining unit because the

collective bargaining agreements (““CBAs’”) in effect at that

time had been amended to preclude returns to the bargain-

ing unit with restoration of seniority.

Respondents commenced an action in the Circuit

Court of Hancock County, West Virginia alleging, inter

alia, that they were third party beneficiaries to CBAs

between National and the Independent Steelworkers

Union (“ISU”), which agreements permitted them to

return with restored seniority to the bargaining units repre-

sented by the ISU in the event of a reduction in force in

the salaried ranks. Respondents alleged that National

breached its third party contracts with them by negotiating

'On January 11, 1984 Petitioner sold substantially all of the assets

of its Weirton plant to the Weirton Steel Corporation. App. A at 67a.

See generally, Sutton v. Weirton Steel Division, Nat'l Steel Corp.. 724

F.2d 406 (4th Cir. 1983), cert. denied, 467 U.S. 1205 (1984.)

3

with the ISU for the changes to the CBAs which eliminated

the ability of former bargaining unit members to return to

the bargaining units with restoration of bargaining unit

seniority. Complaint, 94 84-86.

National removed the action to the United States Dis-

trict Court for the Northern District of West Virginia on

the basis that Respondents’ claims of breach of these third

party contracts were completely preempted by §301 of the

Labor-Management Relations Act, 29 U.S.C. §185(a).

National also asserted that federal jurisdiction existed pur-

suant to 28 U.S.C. §1441(c), inasmuch as the citizenship of

55 of the 63 original plaintiffs was different than National’s

citizenship and the amount in controversy claimed by each

plaintiff exceeded $10,000, exclusive of interest and costs.

Ancillary jurisdiction was asserted over the eight non-

diverse original plaintiffs. Respondents’ motion for

remand was denied:

The initial complaint has been amended twice. In the

Amended Complaints, Respondents abandoned the theory

that they were third party beneficiaries to the CBA. In

place of this theory, Respondents contended that their

alleged oral contracts were independent of the CBA. The

parties engaged in extensive discovery which culminated

in the filing of National’s motion for summary judgment

on, inter alia, the claim of breach of contract resulting

from National’s refusal to return Respondents to the col-

lective bargaining units represented by the ISU. The dis-

trict court granted National’s motion with respect to the

claims of the 42 plaintiffs party to Count | of the action,

but denied it with respect to the 15 Count 3 plaintiffs. By

Order dated February 12, 1990 the district court certified

its partial denial of National’s motion for immediate

appeal pursuant to 28 U.S.C. §1292(b), and also entered

4

final judgment in accordance with Rule 54(b) of the Fed-

eral Rules of Civil Procedure. App. B at 79a, 8la. The

Fourth Circuit Court of Appeals granted National’s Peti-

tion for Leave To Appeal, and consolidated National’s

appeal with that taken by Respondents from the district

court’s final judgment. The Fourth Circuit issued its opin-

ion, which affirmed in part, reversed in part and remanded

the case to the district court, on July 3, 1991. App. C at

119a-120a. By Order filed July 30, 1991 the Circuit Court,

on National’s motion, recalled its mandate pending timely

application to this Court for writ of certiorari.

B. Statement of Facts

1. The P&M Bargaining Unit

The ISU represented the hourly production and main-

tenance (“P&M”) bargaining unit employees at National’s

former Weirton Division for many years. App. A at 9a n.6.

The successive CBAs between National and the ISU recog-

nized four (4) types of competitive seniority within the

P&M bargaining unit. Those four types of seriiority were:

(1) Company Seniority, which was measured from the

employee’s first day of work (initial hire) within the P&M

bargaining unit. Company Seniority, among other applica-

tions, was used to determine which employees ultimately

were laid off “to the street” when a downturn in operations

caused layoffs; (2) Department Seniority, which was mea-

sured from the empioyee’s first day of permanent assign-

ment to one of eleven seniority departments. Department

Seniority, among other applications, was used to deter-

mine which employees within a department faced reduc-

tion from the department when a downturn in department

operations occurred; (3) Sequence Seniority, which was

measured from the employee’s first day of permanent

5

assignment to an entry level job in a seniority sequence, or

line-of-progression, within a department. Among other

applications, Sequence Seniority determined the order of

reductions from a sequence upon a downturn of operations

in the sequence; and (4) Job Seniority, which was mea-

sured from the employee’s first day of permanent assign-

ment to a job in the job sequence or line-of-progression.

Job Seniority, among other applications, determined the

order in which employees would be reduced from their

particular job in a job sequence when reductions occurred

with respect to that job or job sequence.’

For many years before 1980, the P&M _ bargaining

agreements contained language in their seniority provi-

sions that addressed the seniority status of an employee

who transferred out of the P&M bargaining unit and was

later returned to that bargaining unit. In brief, the con-

tracts provided that upon acceptance of a job outside the

P&M bargaining unit, the employee forfeited his accumu-

lated P&M bargaining unit seniority. If, however, the

employee was later returned to the P&M bargaining unit,

his previously accumulated Company Seniority would be

restored and, in addition, the employee would be credited

with additional Company Seniority for his time spent

2As a result of a Consent Decree entered May 12, 1983 among

National, the ISU and the Equal Employment Opportunity Commis-

sion, which resolved consolidated class action claims of race discrimina-

tion, an employee’s Sequence Seniority date and Department Seniority

date were deemed to be the same as his/her Company Seniority date for,

inter alia, purposes of promotion and reduction. However, Job Senior-

ity date was not altered by the Consent Decree. Section III of the Decree

provided that the changes to the measures of seniority effected therein

would be effective retroactively to November 1, 1982. See Consent

Decree, Allen v. Weirton Steel Division of National Steel Corp., Civil

Action Nos. 69-30-W, 72-5-W, 80-75-W (May 12, 1983 N.D.W.Va.).

= 6

outside the P&M bargaining unit.’ These provisions thus

conferred an enhanced seniority status on employees who

returned to bargaining unit positions from positions

excluded from the unit. The pre-1980 CBAs did not set

forth the mechanism by which a former bargaining unit

employee could return to a P&M unit position; rather the

contracts only addressed the seniority status of such an

employee upon his return. See App. A at 2la-22a and nn.

12-15.

During the 1980 P&M collective bargaining negotia-

tions, however, the ISU demanded and National agreed to

changes. to the seniority language in the P&M collective

bargaining agreement. The new language expressly pre-

vented former bargaining unit members from returning to

the P&M bargaining unit if any bargaining unit employee

was on company layoff at the time of return and if the

return was the result of a reduction in force from the

employee’s non-bargaining unit position. In addition, the

1980 CBA permitted restoration only of the Company

‘Prior to 1980, the contract provision addressed only the restora-

tion of Company Seniority upon a return to the bargaining unit. App. A

at 2la n. 12. In practice, if an employee was returned to the bargaining

unit, he had his Department Seniority restored if he returned to his

prior seniority department, had his Sequence Seniority restored if he

returned to his prior sequence and had his Job Seniority restored if he

returned to his prior job. Whether ihe returning employee was placed in

his old department, sequence or job (and therefore had those catergories

of seniority restored) depended on whether the ISU acquiesced to the

placement. The ISU’s acquiescence to the placement depended on its

assessment of whether the restoration of seniority which went along

with placement unduly disturbed existing competitive seniority status

among employees holding Department, Sequence and Job Seniority in

the area where the returning employee sought placement. The district

court found the record before it showed that returns to the P&M unit

prior to 1980 occurred without there being evidence that company and

ISU were not able to agree as to placement. See App. A at 39a-4la.

7

Seniority which had accumulated before the employee left

the P&M bargaining unit; no seniority credit was given for

time spent outside the P&M unit. The 1980 P&M CBA

became effective on August |, 1980, although the seniority

language became effective on October 1, 1980. See id. at

22a n. 15; App. C at 88a-89a.

2. The SNE Bargaining Unit

In the autumn of 1978 the ISU prevailed in an elec-

tion and was certified by the National Labor Relations

Board as the bargaining representative of the Salaried

Non-Exempt (“SNE”) employees of the Weirton Division.

App. A at 9a n.6. National had, prior to this time, unilater-

ally promulgated its Standard Practice Manual which set

forth its employment policies applicable to SNE positions.

Among the provisions of the Standard Practice Manual

was a section addressing the competitive seniority status of

SNE employees, which in its relevant language mirrored

the seniority provisions of the pre-1980 P&M CBAs. The

first two CBAs between National and the ISU SNE bar-

gaining unit (effective August 30, 1979 and August 1, 1980

respectively) provided that the seniority provisions of the

Standard Practice Manual would continue to apply to the

SNE bargaining unit until the parties could reach agree-

ment on new seniority language. The contracts obliged

National and the SNE unit representatives to continue

bargaining over final seniority language during the terms of

the agreements. App. A at 25a; App. C at 90a.

Under the Standard Practice Manual and the labor

contracts which incorporated it, employees who accepted

positions outside the SNE bargaining unit, and thereby

forfeited their accumulated SNE bargaining unit seniority,

could have that seniority restored, with additional credit

8

granted for time spent outside the SNE unit, upon return

to the SNE unit. As was the case with the pre-1980 P&M

contract, however, the SNE agreement did not address the

mechanism by which an employee could effect a return to

the SNE unit. App. A at 27a-28a.

in March of 1982, National announced its intent to

sell the Weirton Division to its employees. See Sutton, 724

F.2d at 709. In addition, the effects of the recession had

gripped Weirton, prompting the ISU to demand changes to

the SNE seniority language to preclude the return of for-

mer SNE employees to the SNE bargaining unit. In

response to this demand, National agreed on August 24,

1982 to halt returns of former SNE employees into the

SNE-bargaining unit, which returns had had the effect of

displacing current SNE unit employees with less seniority

than that restored to the returning employees. The hiatus

on returns continued until September, 1983 when National

and the ISU agreed to incorporate seniority language into

the SNE collective bargaining agreement which was identi-

cal to that contained in the 1980 P&M contract. See App.

A at 26a-28a; App. C at 90a.

3. Respondents’ Claims and Their Disposition Below

This Petition seeks review of the Fourth Circuit’s dis-

position of breach of contract claims brought by Respon-

dents in Counts | and 3 of their Second Amended Com-

plaint. Forty-two of the Respondents are parties plaintiff to

Count 1.4 All forty-two were initially employed as hourly

‘They are: Arthur Dale White, James Anderson, James H. Baker,

Richard S. Barber, Robert L. Billick, Edward Bittner, Harry V. Brown,

James H. Browning, James W. Bullock, Edward Dhayer, Ralph

Anthony DiBacco, William R. Duncan, Jr., Domenic F. Frio, Dorsey R.

Garrett, William F. Garrison, James A. Gracie, III], Thomas M.

(Continued on next page)

9

workers in the P&M bargaining unit represented by the

ISU, and they all accepted salaried management positions

outside the P&M bargaining unit before 1980. As indi-

cated, among the allegations in Count | is that National

promised them that each could return to his former P&M

bargaining unit position (i.e., the job he left) with full res-

toration of his seniority status (i.e., restoration of Com-

pany, Department, Sequence and Job Seniority as if he had

never left his prior job), in the event of a layoff from his

salaried management position or if he wanted to return to

the unit for any reason. They claim that “[o]n or about

August |, 1980, and thereafter’, National breached their

individual employment contracts by “[rjescinding each

Plaintiff's right of option to return to an hourly position in

the event of reduction in [National’s] salaried work

force...” See App. A at 4a-Sa (quoting 4 73 of the Second

Amended Complaint). At the time each Count | plaintiff

was laid off in 1982 from his salaried management posi-

tion, National did not return him to a P&M bargaining

unit position because the P&M collective bargaining agree-

ment then in effect expressly prohibited such returns.

These Count | breach of contract claims are premised on

the West Virginia law of contracts.

(Continued)

Grishkevich, David R. Harbin, James W. Hazlett, Rena E. Hess, Phillip

E. Johnson, Jerry G. Jones, Robert L. Jones, Joseph P. Karas, Bartley R.

Kirkbride, David G. Kondik, Frank W. Kruger, Jr., Charles L. Lacey,

Ernest H. McCormick, Boley Dale Mermon, Charles D. Murray, Dale

E. Poole, Charles Prince, Larry C. Riggle, John R. Selmon, Jr., Ronald

L. Spring, Frederick C. Tate, Stephen F. Tucker, Frederick R. Welshans,

Charles F. West, Donald L. White and Dominic A. Tedeschi, Jr.

10

Twelve Respondents remain as parties plaintiff to

Count 3 of the Second Amended Complaint.’ They were

all employed in SNE positions and subsequently accepted

salaried management jobs.® Like their Count | brethren,

the Count 3 plaintiffs claim that, at the time they accepted

salaried management positions, each was promised by

National that he could return to his SNE position with full

restoration and enhancement of his accumulated Com-

pany seniority in the event of layoff from his salaried man-

agement position, or at any time. Each claims that on or

about August 25, 1982 and thereafter, National breached

its individual contracts with them by rescinding this right

of return to an SNE position. See App. A at 6a; App. C at

90a. National did not return these individuals to their

prior SNE bargaining unit positions because of its August

24, 1982 agreement with the ISU to cease such returns. As

‘They are: Thomas A. Balon, Larry G. Bell, David S. Bickler, Rich-

ard Blancato, Robert A. Bray, Jr., Charles A. Clark, Timothy C. Law-

son, Robert J. Ryan, Jr., John S. Sciance, Kenneth M. Seiple, Dennis D.

Shirer and Hoy L. Van Horn. Summary judgment was entered on the

claims of three other Count 3 plaintiffs (Joseph W. Mayernick, Patricia

Mlodzik and William Riggs) on state law grounds. App. B at 73a. The

Fourth Circuit affirmed this disposition of their claims and accordingly

they are not before this Court.

°Of this group, eight (Larry G. Bell, David S. Bickler, Richard

Blancato, Timothy C. Lawson, William B. Riggs, John S. Sciance, Den-

nis D. Shirer and Hoy L. Van Horn) accepted salaried management

positions before the ISU was certified as representative of the SNE

bargaining unit. One (Thomas A. Balon) accepted his salaried manage-

ment position after the ISU’s certification but before the initial collec-

tive bargaining agreement was executed. The three remaining Count 3

plaintiffs accepted their salaried management positions after the ISU

and National had agreed to incorporate the Standard Practice Manual’s

seniority provisions into the collective bargaining agreement for the

SNE bargaining unit, but before the August 25, 1982 agreement with the

ISU to freeze returns of former SNE employees to the SNE unit. See

generally, Answer to Second Amended Complaint.

11

is the case in Count |, the claims made in Count 3 for

breach of contract are prosecuted as state law claims.

National contended that §301 pre-empted these Count

1 and Count 3 breach of contract claims brought under

state law. National argued both that these claims arose out

of the seniority provisions of P&M and SNE CBAs and

that the claims were substantially dependent on analysis of

the terms of these CBAs. National also urged that the

claims should be characterized as federal claims under

§301 because they interfered fundamentally with the col-

lective bargaining relationship between National and ISU.

On National’s motion for summary judgment on the pre-

emption issues, the district court determined that the

Count | claims were preempted both because analysis of

the claims required interpretation of the P&M CBA and

because the claims were in direct conflict with the terms of

the 1980 P&M agreement. See App. A at 24a-25a. The

district court entered final judgment on this ruling pursu-

ant to Rule 54(b) of the Federal Rules of Civil Procedure.

App. B at 79a. In contrast, the district court ruled that the

Count 3 claims were not preempted. The court first held

that the August 24, 1982 agreement between National and

the ISU SNE unit freezing returns did not amend the SNE

CBA. Absent effective amendment, the court concluded

that the SNE agreement in effect at the time of the layoffs

did not address the right of Respondents to return to SNE

positions, but rather only addressed the competitive

seniority status of employees after such a return. The dis-

trict court held that the claims for return to the SNE unit

did not conflict with the current SNE agreement and were

therefore not preempted. App. A at 27a-30a. The court did

not address National’s argument that preemption of the

Count 3 claims was compelled because resolution of the

12

claims was substantially dependent on analysis of the

terms of the SNE CBAs. The district court certified its

ruling on Count 3 for interlocutory appeal pursuant to 28

U.S.C. §1292(b). App. B at 81a.

On appeal, the Fourth Circuit reversed the cistrict

court’s disposition of the Count | claims, and ainrnied on

other grounds that court’s resolution of the Count 3

claims. In National’s view, the Fourth Circuit’s analysis of

the preemption issues raised by these two counts is based

on an imperfect application of the preemption principies

announced by this Court.

The Circuit Court, after first reviewing this Court’s

seminal rulings on §301 preemption, concluded that the

claims at issue here are “independent of any collective

bargaining agreement”, App. C at 98a, and so not pre-

empted. The court accepted Respondents’ contention that

the sources of the rights asserted are “independent oral

contracts of employment that do not rely on the terms of

any collective bargaining agreement’, id., and rejected

National’s argument that these rights “are either actually

founded in or ‘inextricably intertwined’ with collective

bargaining agreements and thus preempted by §301.” Jd. at

99a. Acceptance of the Respondents’ characterization of

their claims as “independent” of any collective bargaining

agreement precluded, in the court’s view, the conclusion

that the claims were preempted by §301. /d.

On a second level of analysis, the Fourth Circuit con-

sidered National’s argument that, in matters implicating

the relationship between employers and employees in a

collective bargaining context, federal labor law should

define the obligations of the parties and hence, the liabili-

ties which result from breach of those obligations.

National’s argument was premised on the fact, undisputed

13

by Respondents, that the subject of the contracts they seek

to enforce at state law are specific positions within the

relevant ISU bargaining units and the collectively bar-

gained seniority entitlements on which their ability to hold

those positions is ultimately founded. The court, while

acknowledging that “National’s arguments are founded on

strong principles of federal labor law”, id. at 103a, never-

theless rejected them. Relying principally on this Court’s

decisions in J.J. Case Co. v. NLRB, 321 U.S. 332 (1944) (as

construed in Caterpillar, Inc. v. Williams, 482 U.S. 386

(1987)) and Belknap, Inc. v. Hale, 463 U.S. 491 (1983), the

circuit court held that “[e]mployees who have made valid

individual contracts that conflict with subsequent federal

labor agreements, and thus cannot be specifically enforced,

are still free to bring damage claims against their employer

for breach of contract.”” App. C at 104a. The court con-

cluded that because Respondents sought only damages for

the alleged contract breaches. and not reinstatement to

bargaining unit positions, no principles of federal labor law

would be compromised. /d. at 105a. The court thus found

it unnecessary to decide whether the August 24, 1982

agreement between National and the ISU freezing returns

to the SNE unit was an effective amendment of the SNE

collective bargaining agreement. Jd. at 107a n. 2. The case

was remanded to the district court for application to

Respondents’ claims of the proper West Virginia eviden-

tiary standard governing contract claims. Jd. at 120a.

REASONS FOR GRANTING THE WRIT

This Court has not considered the extent of §301’s

preemptive effect on the state law claims of non-bargaining

unit employees alleging breach of individual contracts to

return them with seniority to their former bargaining unit

positions. The Fourth Circuit’s decision on this difficult

14

issue misapplied the preemption principles announced by

this Court and is inconsistent with the decisions of a num-

ber of lower courts on similar facts. The writ should be

granted to clarify this important area of federal labor law

and to resolve the conflicting lower court approaches to the

problem.

A. Respondents’ State Law Claims

Are Not Independent of the

Collective Bargaining Agreements

The fundamental task of a court analyzing the defense

of preemption by §301 is to determine if the claim is inde-

pendent of the collective bargaining agreement. E£.z.,

United Steelworkers of America v. Rawson, 110 S.Ct. 1904,

1910 (1990); Lingle v. Norge Div. of Magic Chef, Inc., 486

U.S. 399, 407 (1988); Caterpillar, Inc. v. Williams, 482

U.S. 386, 396 (1987); Electrical Workers v. Hechler, 481

U.S. 851, 859 (1987); Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 213 (1985). Two analytical approaches to the

preemption inquiry can be gleaned from these cases. The

first examines the source or origin of the right which is the

basis of the claim, and results in preemption by §301 where

the claim has its source in, or arises out of, the collective

bargaining agreement or relationship. Caterpillar, 482 U.S.

at 394; Allis-Chalmers, 471 U.S. at 213. The second

approach focuses on whether resolution of the state law

claim is dependent on analysis or interpretation of the

collective bargaining agreement, or is inextricably inter-

twined with it. Hechler, 481 U.S. at 862; Allis-Chalmers,

471 U.S. at 213. A claim is independent of a collective

agreement, and hence not preempted by §301, only if it

does not derive from and does not require interpretation of

or reference to the agreement.

15

Although the Fourth Circuit correctly identified the

threshold issue presented in this litigation, its conclusion

that Respondents’ claims are independent of the CBAs is

too facile. The court concluded that “the duties National

allegedly assumed are defined by the terms of the individ-

ual employment contracts and not by a collective agree-

ment.” App. C. at 15. That is, the alleged oral promises

were made by management representatives during an

interview for promotion out of the bargaining units and

the oral promises made no mention of the CBAs. This

conclusion, however, ignores the reality that Respondents’

state claims seek the benefit of the bargaining agreements

as they existed prior to the amendments that prevented

their return to the bargaining units. The circumstances

involved in this case are vastly different from those found

irrelevant to the preemption analysis by the Lingle Court.

In Lingle, the fact that “the state-law analysis might well

involve attention to the same factual considerations as the

contractual determination” did not render “the state-law

analysis dependent on the contractual analysis.” Lingle,

486 U.S. at 408. This was so because Lingle’s state claim

existed regardless of her status as a union employee. Here,

the Fourth Circuit has sanctioned the use of state contract

law to enforce damage claims of entitlement to positions

within a collective bargaining unit.

The circuit court’s conclusion glosses over the grava-

men of Respondents’ action: they demand application to

each of them of the seniority provisions of the collective

agreement. Respondents themselves recognized, during the

Summary juGgment proceedings in the district court, that

[iJmplicit in the promise that a foreman could return

to his former position was that he would return with

16

his full seniority restored. It is axiomatic that a fore-

man could only return to his former position if his full

seniority was restored. The right to hold a specific

position in the hourly or non-exempt [SNE] ranks is

dependent upon an employee’s job, sequence, depart-

ment and Company seniority. Thus, if a plaintiff

returned with no seniority, he would not be able to

hold his former position.

Plaintiffs’ Brief In Opposition To Defendant’s Motion For

Summary Judgment, at 113. The Fourth Circuit appar-

ently deemed it legally irrelevant that Respondents’ state

damage claims depended upon restoration of bargaining

unit seniority. But bargaining unit seniority is a type of

entitlement that is “without existence independent of the

collective-bargaining agreement.” Rawson, 110 S.Ct. at

1909. See Aeronautical Ind. Dist. Lodge 727 v. Campbell,

337 U.S. 521, 525-526 (1949); Ulrich v. Goodyear Tire &

Rubber Co., 884 F.2d 936, 938 (6th Cir. 1989); Cooper vy.

General Motors Corp., 651 F.2d 249, 249 (Sth Cir. 1981);

Kern v. United Steelworkers, 669 F.Supp. 701, 704

(M.D.Pa. 1987). The seniority rights Respondents seek to

enforce through damages at state law in this action derive

from CBAs, and so are not independent of those

agreements.

This is not a case such as that presented in Lingle,

where a state law right and remedy, available regardless of

whether the party asserting the right is covered by a collec-

tive bargaining agreement, was found not to be preempted.

Instead, the claims here are by their very nature ultimately

premised on a collective bargaining agreement containing

provisions that Respondents perceive as providing them

greater job security. They thus relate to the CBAs, in the

sense that they have ‘‘a connection with or reference to”

the agreements, Shaw vy. Delta Airlines, Inc., 463 U.S. 85,

17

97 (1983), and are not independent of those agreements.

National argued below that, because the Respondents’

claims “related to” the collective bargaining agreements in

the sense contemplated by the use of that phrase in §514(a)

of ERISA, 29 U.S.C. §1144(a), those claims could not be

independent of the CBAs. Although this Court has fre-

quently noted that the preemptive scope of ERISA and of

§301 are co-extensive, e.g., Ingersoll-Rand Co. v. McClen-

don, 111 S.Ct. 478, 485-486 (1990); Metropolitan Life Ins.

Co. v. Taylor, 481 U.S. 58, 64-65 (1987); Pilot Life Ins. Co.

v. Dedaux, 481 U.S. 41, 54-55 (1987), the Fourth Circuit

rejected sub silentio National’s argument. In McClendon,

the fact that the state law claim did not exist in the absence

of the employer’s pension plan resulted in the conclusion

that the state cause of action related to the pension plan,

and so was preempted. 111 S.Ct. at 483-484. The same

result should obtain here; Respondents have no claims in

the absence of the collectively bargained seniority from

which they seek to benefit.

Finally, although this Court has noted that employees

are not necessarily disabled from enforcing individual con-

tracts when their terms and conditions of employment

may also be affected by collective agreements, e.g., Cater-

pillar, 482 U.S. at 394, it has never specifically addressed

how claims based on purported individual contracts are to

be analyzed when those claims implicate CBAs to the

extent that these claims do. Caterpillar suggests, however,

that where the individual contract claims “rely upon the

collective agreement indirectly, ...{or] address the rela-

tionship between the individual contracts and the collec-

tive agreement’, id. at 395, preemption by §301 is

required. A/lis-Chalmers contains a similar suggestion:

18

Nor do we hold that every state law suit asserting a

right that relates in some way to a provision in a

collective bargaining agreement, or more generally to

the parties to such an agreement, necessarily is pre-

empted by §301. The fuil scope of the pre-emptive

effect of federal labor-contract law remains to be

fleshed out on a case-by-case basis.

471 U.S. at 220. As demonstrated above, Respondents’

claims here do at least indirectly rely on the terms of the

CBAs and therefore require analysis of the relationship

between the individual contracts and the CBAs. That reli-

ance, even taken alone, should be sufficient to demonstrate

that these claims are not independent of the CBAs. More-

over, any analysis of the effect of the individual contract

claims on the collective agreements must be undertaken in

conformity with the principles of federal labor iaw if that

law is to retain its vitality.

Certiorari should be granted to clarify whether the

claims made by Respondent are truly “independent” of the

parallel provisions of the collective agreements.

B. Principles of Federal Labor Law

Preclude Maintenance Under State Law

of Respondents’ Claims

As earlier indicated, the Fourth Circuit rejected

National’s argument that Respondents’ state law claims

interfered with the relationship between National and the

ISU and should be preempted on that basis. The court

misconstrued National’s argument, stating that it “would

have us declare plaintiffs’ individual contracts null and

void as a result of subsequent bargaining agreements that

limited their right to return to the unit”. App. C at 103a. In

actuality, National’s argument required no such draconian

19

result. Rather, National urged only that these claims could

not be enforced pursuant to state law contract principles,

but instead must be characterized as federal claims under

§301 and be resolved by reference to federal labor policy

and the federal common law developed thereunder.

The jurisdictional reach of §30! is undoubtedly broad

enough to encompass the claims made here. In Textile

Workers v. Lincoln Mills, 353 U.S. 448 (1957) this Court

observed that §301 encompasses “‘[o]ther problems

[which] lie in the penumbra of express statutory mandates.

Some will lack express statutory sanction but will be

solved by looking at the policy of the legislation and fash-

ioning a remedy that will effectuate that policy. The range

of judicial inventiveness will be determined by the nature

of the problem.” 353 U.S. at 457. Respondents’ claims

here occupy the “penumbra” of §301 referred to by the

Lincoln Mills Court. They should be characterized as fed-

eral claims and resolved by reference to federal labor

policy.

The Fourth Circuit declined to recharacterize Respon-

dents’ claims under federal law, concluding that because

they sought only damages and not reinstatement, no prin-

ciples of federal labor law were compromised. App. C at

105a. Respondents have steadfastly held to their position

that they asserted state law, not federal law, claims. The

circuit court also observed that the claims did not threaten

the “federal policy of promoting arbitration of labor

disputes” because the claims were not grounded in the

CBAs. Id. at 105a-106a. The Fourth Circuit's focus was too

narrow.

It is settled that whether a claim is properly character-

ized as arising under federal or state law has nothing to do

with the type of remedy sought. “The nature of the relief

20

available after jurisdiction attaches is, of course, different

from the question whether there is jurisdiction to adjudi-

cate the controversy ...[{T]he breadth or narrowness of

relief which may be granted under federal law in §301 cases

is a distinct question from whether the court has jurisdic-

tion over the parties and the subject matter.” Avco Corp. v.

Aero Lodge 735, 390 U.S. 557, 561 (1968). See also Cater-

pillar, 482 U.S. at 391 n. 4; William E. Arnold Co. v.

Carpenters District Council, 417 U.S. 12,18-19 (1974). Cf

Ingersoll-Rand Co. v. McClendon, 111 S.Ct. at 481, 486

(fact that plaintiff sought damages instead of pension bene-

fits immaterial to preemption analysis).’ Thus, to the

extent the Fourth Circuit’s conclusion that Respondents’

claims are not preempted turns on the fact that only dam-

ages are sought as remedy, it is undoubtedly incorrect.

Second, while it cannot be gainsaid that one principle

underlying this Court’s preemption jurisprudence is pres-

ervation of the role of arbitration in the resolution of con-

tractually based labor disputes, A/lis-Chalmers, 471 U.S. at

’National also argued that the demand for damages itself required

interpretation of the seniority provisions of the collective agreements.

The measure of damages for breach of the contracts alleged by Respon-

dents would be the wages attendant to the bargaining unit position each

would have held had he been returned. As noted, the ability to hold

positions within the bargaining unit is a function of the Company,

Department, Sequence and Job seniority conferred by the collective

bargaining agreement. The seniority provisions of the agreements would

thus have to be interpreted and applied in order for Respondents to

prove damages. National argued that the necessity for such interpreta-

tion rendered Respondents’ claims more than “tangentially” related to

the collective bargaining agreements, and required their preemption

because they are “inextricably intertwined with consideration of the

terms of the labor contract.” Allis-Chalmers Corp., 471 U.S. at 211, 213.

See also Lingle, 486 U.S. at 407 n. 7 (noting that remedy which requires

contract interpretation would be preempted). The circuit court reyected

sub silentio this argument.

21

219, it is not the only principle applicable. Cf Groves vy.

Ring Screw Works, 111 S.Ct. 498 (1990) (breach of con-

tract suit may be maintained under §301 even in absence

of contractual agreement to arbitrate). Section 301 also

provides and authorizes the development of the substan-

tive law governing “the relationships created by [a collec-

tive bargaining] agreement,” Allis-Chalmers, 471 U.S. at

211 (quoting Bowen v. United States Postal Service, 459

U.S. 212, 224-225 (1983)), even where contract language

need not be interpreted. See United Steelworkers of

America v. Rawson, 110 §.Ct. 1904 (1990) (§301 controls

relationship between union and its members, displacing

State tort law). Here, the CBAs created an ongoing relation-

ship among Respondents (former bargaining unit mem-

bers), National and the ISU. That relationship was the

subject of collective bargaining between National and the

ISU. Respondents seek to exercise their alleged contractual

rights in a manner inconsistent with the CBAs. Their abil-

ity to do so must be determined under federal labor law in

order to accommodate that law’s policy concerns. See

Allis-Chalmers, 471 U.S. at 213 (“If the state... law pur-

ports to define the meaning of the contract relationship,

that law is preempted’).

Respondents’ circumstances in this case are analogous

to those of the retirees addressed by this Court in Chemical

Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971)

(“PPG”). There, it was held that although collective bar-

gaining over benefits payable to retirees was not

mandatory, because retirees were not employees within the

meaning of §2(3) of the National Labor Relations Act, 29

U.S.C. §152(3), it nevertheless was permissible for the

employer and the union to bargain over such benefits. This

Court noted that the retirees would “have a federal remedy

22

under §301” for any breach of the collective agreement

setting forth the benefits to which they were entitled, 404

U.S. at 181 n. 20, despite the fact that they were not mem-

bers of the bargaining unit covered by the collective bar-

gaining agreement. Nothing in the PPG decision indicates

that the retirees could avail themselves of state law actions

and remedies to establish their contractual entitlements.

Cf. United Auto Workers v. Yard-Man, Inc., 716 F.2d 1476,

1479 (6th Cir. 1983), cert. denied, 465 U.S. 1007 (1984)

(“Clearly the parties to a collective bargaining agreement

may provide for rights which will survive termination of

their contractual relationship . .. Any such surviving bene-

fit must necessarily find its genesis in the collective bar-

gaining agreement’).

Here, much like the situation in PPG,’ the rights

Respondents’ seek to assert are undeniably addressed in

collectively bargaining agreements. Their initial complaint

in this matter went so far as to allege that they were third

party beneficiaries to these labor contracts. Whether their

claims retain vitality after the subsequent amendments to

the CBAs precluded their ability to return to the bargaining

units should, as a matter of federal labor policy, be deter-

mined by application of the federal common law of labor

relations. See Allis-Chalmers, 471 U.S. at 211 (“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

8One distinction between the instant case and the PPG decision lies

in the fact that the seniority provisions of the agreements at issue here

were, in all likelihood, mandatory subjects of bargaining. This is so

because when returns to the unit were effected thereunder, the effect of

such returns was “the replacement of employees in the existing bargain-

ing unit with [others] to do the same work under similar conditions of

employment.” Fibreboard Corp. v. NLRB, 379 U.S. 203, 215 (1964).

23

to uniform federal law ...”); Caterpillar, 481 U.S. at 395

(suggesting that claims which “address the relationship

between the individual contracts and the collective agree-

ment” should be decided under federal law). See also

Ulrich v. Goodyear Tire & Rubber Co., 884 F.2d 936, 938

(6th Cir. 1989).

The Fourth Circuit’s reliance on Belknap, Inc. v. Hale,

463 U.S. 491 (1983) and J.J. Case Co. v. NLRB, 321 U.S.

332 (1944) in support of its contrary conclusion was mis-

placed. Belknap is both factually and legally distinguish-

able. That case, relying in part on San Diego Building

Trades Council v. Garmon 359 U.S. 236 (1959), held that

the National Labor Relations Act did not preempt state

contract claims brought by permanent strike replacements

who lost their jobs to reinstated strikers. Be/knap simply

did not consider the defense of §301 preemption. More-

over, as this Court’s subsequent decisions in A/lis-

Chalmers and its progeny make plain, the preemptive

scope of §301 is far more broad than that of the National

Labor Relations Act. Indeed, the pre-emptive doctrine

cases such as Garmon and Belknap, which are based upon

the exclusive jurisdiction of the National Labor Relations

Board, are “ ‘not relevant’ to actions within the purview of

§301.” William E. Arnold Co. v. Carpenters, 417 U.S. at 16

(quoting Teamsters v. Lucas Floor Co., 369 U.S. 95, 101 n.

9 (1962). See also Allis-Chalmers, 471 U.S. at 213 n. 9.

Nor does J.J. Case support the Fourth Circuit’s deci-

sion, for it leaves unanswered the central question

presented here. In J.J. Case, this Court stated that individ-

ual contracts “cannot subtract from collective ones, and

whether under some circumstances they may add to them

in matters covered by the collective bargain, we leave to be

24

determined by appropriate forums under the laws of con-

tracts applicable, and to the Labor Board if they constitute

unfair labor practices.” 321 U.S. at 339. National, of

course, contends that the “laws of contracts” applicable to

Respondents’ claims are federal laws, and the J./. Case

decision does not indicate otherwise.

Federal labor law should govern resolution of Respon-

dents’ claims, since those claims impact directly on the

collective agreements made between National and the ISU.

The writ of certiorari should be granted to reassert the

primacy of federal labor law over issues affecting the rela-

tionship of the parties to CBAs.

C. The Lower Courts Are Divided

On the Preemption Issues Raised In

This Petition

The lower courts have wrestled with the question of

the proper resolution of the claims of former bargaining

unit employees who assert rights attendant to their former

bargaining unit status. The decisions are not homogenous.

The decision of the Fourth Circuit in the instant case

is directly in conflict with that of the Sixth Circuit in Ulrich

v. Goodyear Tire & Rubber Co., 884 F.2d 936 (6th Cir.

1989). In Ulrich, the Sixth Circuit found claims identical to

those presented here preempted:

We conclude that the District Court erred in holding

the plaintiffs’ so-called “state law” claims were not

preempted by federal law. Plaintiffs’ request for return

to the bargaining unit and for seniority nghts upon

return depends on rights created by the CBA. The

allegedly ““common practice” of allowing free transfer

to and from the bargaining unit on which plaintiffs

rely relates to the manner in which the CBA was

25

enforced and the practices and customs of the work-

place. Broadly speaking, the question depends upon

an interpretation of the CBA. The decision of the Dis-

trict Court on plaintiffs’ cparate “state law” claims

turned on a determination that the language of the

CBA itself did not create an automatic right to return

to the bargaining unit. The existence of the plaintiffs’

so-called “state law claim” is inextricably intertwined

with the CBA.

884 F.2d at 938. The Ulrich court remanded the case to the

district court for a “ruling on the merits of their contract

and promissory estoppel claims as a matter of federal com-

mon law.” Id.

The Third Circuit, in a divided opinion, came to a

hybrid solution in Malia v. RCA Corp., 794 F.2d 909 (3d

Cir. 1986), cert. denied, 482 U.S. 927 (1987). The court

held that the plaintiff could enforce his alleged promise to

return to the bargaining in a state law contract claim

because the relevant bargaining agreement did not specify

the mechanism under which a former bargaining unit

member could effect a return. 794 F.2d at 912. Once

returned, however, the plaintiffs’ seniority status within

the unit would be determined “on the terms and condi-

tions of employment set forth in the collective bargaining

agreement.” /d. at 913. In dissent, Judge Becker would

have viewed the entire claim as one arising under the col-

lective bargaining agreement, stating that:

[A]ny close question about the scope of the coverage

of the collective bargaining agreement should be

resolved in favor of a broad reading because strong

feaeral policy interests support such coverage. If an

issue 1s covered by a collective bargaining agreement,

it not only falls within federal jurisdiction, but, assum-

ing the agreement contains on arbitration provision, it

26

is resolved in the first instance by an arbitrator. Thus,

a conciusion that an issue is governed by the collective

bargaining agreement furthers “interpretive uniform-

ity and predictability”, Allis-Chalmers, 105 S.Ct. at

|

Id. at 914 (Becker, J., dissenting). The dissent further noted

that “‘although the oral contract did, for the most part,

pertain to the position of inventory supervisor, the single

term that Mr. Malia is seeking to enforce—reinstatement

to his former position—is one that not only impinges upon

the bargaining unit, but is provided for in the collective

bargaining agreement.” /d. at 915. The dissent would thus

have found the claim preempted.

In Berda v. CBS, Inc., 881 F.2d 20 (3d Cir. 1989), cert.

denied, 110 S.Ct. 879 (1990) the court considered the

“circuit-splitting question” of whether state law claims

based upon alleged misrepresentations of job security,

“made before the employee became a member of the bar-

gaining unit, which conferred additional rights to those

afforded by the collective bargaining agreement, are pre-

empted by section 301.” 881 F.2d at 20. Berda’s claims

were premised on alleged representations that his employ-

ment with CBS “would be guaranteed for the reasonably

foreseeable future.”’ Jd. at 21. Berda accepted the position

with CBS, became a member of the bargaining unit repre-

senting CBS’s employees, and was laid off in accordance

with the terms of the bargaining agreement five months

later. Jd. The Third Circuit, relying on Caterpillar and J./.

Case, held that Berda stated valid state law claims because

those claims were not dependent on an interpretation of

the bargaining agreement. /d. at 26. The Berda court noted,

however, that unlike the situation presented here, it was

“not currently presented with the question whether the

27

existence of a subsequent collective bargaining agreement

may constitute a defense to Berda’s contract claim under

state or federal law.” Jd. (footnote omitted).

Redmond vy. Dresser Industries, Inc., 734 F.2d 633

(11th Cir. 1984) found preempted the plaintiff's state law

claims of, inter alia, contract breach to return to his former

bargaining unit position. Holland v. National Steel Corp.,

791 F.2d 1132 (4th Cir. 1986), a case arising out of the

Weirton plant during the same period of lay off which gave

rise to this litigation, found the plaintiff's claim for return

to the bargaining unit preempted. In both cases, the courts

determined that the source of the rights claimed was the

collective bargaining agreement provision addressing the

issue of returns, despite both plaintiffs’ protestations that

they were asserting individual contracts. See Redmond,

734 F.2d at 635; Holland, 791 F.2d at 1134.

In Kern v. United Steelworkers of America, 669

F.Supp. 701 (M.D.Pa. 1987) the court found preempted

plaintiff's state contract claim for return to the unit despite

accepting the argument that the claim was not inconsistent

with the governing collective bargaining agreement:

If employees were free to negotiate and enforce sepa-

rate oral agreements identical to the collective bar-

gaining agreements under which they labored, and

then if they were permitted to enforce these oral agree-

ments under state law, much of the federal concern for

swift resolution of disputes through grievance and

arbitration procedures, or through immediate court

intervention, and for consistent interpretation of con-

tract terms would be undermined. Plaintiffs would be

free to rely on longer statutes of limitations, and they

would be free to ignore grievance/arbitration proce-

dures. The uniform federal common law growing out

28

of the Labor Management Relations Act that courts

have been so careful to protect would be circumvented

and ineffectual.

669 F.Supp. at 704.

As evident from the foregoing decisions, the lower

courts have developed varied approaches to treatment of

claims such as those presented in the instant case. This

Court has not addressed the preemptive scope of §301 on

the claims of non-bargaining unit employees seeking to

enforce at state law contracts to return to the bargaining

unit. Certiorari should be granted to resolve this conflict in

the lower courts.

29

CONCLUSION

For the foregoing reasons, Petitioner National Steel

Corporation requests that its Petition for Writ of Certiorari

be granted.

Respectfully submitted,

VOLK, FRANKOVITCH, ANETAKIS,

RECHT, ROBERTSON & HELLERSTEDT

py. Cob MMe hhh L

Cart H. HELLERSTEDT, Jr.

(Counsel of Record)

CARL N. FRANKOVITCH

JOHN A. McCREARY, JR.

Three Gateway Center

15th Floor East

Pittsburgh, PA 15222

Telephone: (412) 392-2300

Counsel for Petitioner