# Petition for Writ of Certiorari — National Steel Corp. v. White > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2788%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 502 U.S. 974 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2788%3A1. Public record. Not legal advice.