Opposition Brief — Steelworkers v. Rawson

In The

Supreme Court of the United States |

October Term, 1989 |

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UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

Petitioner,

THARON RAWSON, Individually and as Guardian Ad

Litem for SETH RAWSON and CINDY RAWSON;

BERNIECE JOHNSON, Individually and as Guardian

Ad Litem for MICHAEL WAYNE NSON, RUTH

ELLEN JOHNSON and JOHN RUSSEL JOHNSON;

LAURA DUNBAR, as Guardian Ad Litem for RICKINA

ROSSITER and GLEN ROSSITER, JR.; and MARY

WOOD, as Guardian Ad Litem for LESLIE D. WOOD,

Respondents.

>

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

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KennetH B. Howarp

Kevin P Cassipy

Howarp & Owens, P.A.

P.O. Box 1578

Coeur d'Alene, ID 83814

Lidve |. Wess

Wess, Burton, CARLSON

& PeEDERSON

P.O. Box 1768

Twin Falls, ID 83303

CARTWRIGHT, SUCHERMAN

& SLoBODIN

101 California St. — 26th Floor

San Francisco, CA 94111

Attorneys for Respondents

COCKLE LAW SRIEF PRINTING CO. @OD) 225-4964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

1. Whether §301 of the Labor Management Relations Act

preempts a state tort claim for the negligent conduct and

acts of the United Steelworkers Union, which occurred

during the Union’s safety inspection of the Sunshine

Mine.

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TABLE OF AUTHORITIES

Page

Cases

Allis-Chalmers v. Lueck, 471 U.S. 203 (1985)

D SEE EE ee 12, 13, 17

Condon v. Local 2944, United Steelworkers, Etc., 683

EE ̃ ee 15, 16

Dunbar v. United Steelworkers of America, 100 Idaho

Ee 3, 5

Farmer v. United Broth. of C. & J. of America, Local

EEE 16, 17

Horton v. Miller Chemical Co., 776 F.2d 1351 (CA7

1985), cert. denied, 475 U.S. 1122, 106 S.Ct. 1641,

EEE . .. 13

IBEW v. Hechler, 481 U.S. 851 (1987). passim

i v. Norge Div. of Magic Chef, Inc. U. 8.

Vw occ cccccsccccccsccccce: passim

Linn v. United Plant Guard Wkrs. of Amer., Loc 114,

r ¶ ͥʒᷣ 16, 17

Rawson v. United Steelworkers, 111 Idaho 630, 716

r cn ccaceccensceseeccee: passim

Richardson v. United Steelworkers of America, 864

r 16

Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962) ...... 12

STATUTES

r ̃è 4 . „„ 2

r 2 3

r ̃ͤ œ Vifiri e 3

In The

Supreme Court of the United States

October Term, 1989

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UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

Petitioner,

BERNIECE Indi and as Guardian

Ad Litem for MICHAEL WAYNE , RUTH

ELLEN JOHNSON and JOHN RUSSEL b

WOOD, as Guardian Ad Litem for LESLIE D. WOOD,

Respondents.

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BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

>

The Respondents, Tharon Rawson, individually and

as Guardian Ad Litem for Seth Rawson and Cindy

Rawson; Berniece Johnson, individually and as Guardian

Ad Litem for Michael Wayne Johnson, Ruth Ellen Johnson

and John Russel Johnson; Laura Dunbar, individually and

as Guardian Ad Litem for Rickina Rossiter and Glen

Rossiter, Jr., and Mary Wood, individually and as Guard-

ian Ad Litem for Leslie D. Wood, oppose the Petitioner’s

1

request for Writ of Certiorari to the Supreme Court, and

file this Brief setting forth the reasons for their

opposition.

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STATEMENT OF THE CASE

On May 2, 1972, a fire broke out in the Sunshine Mine

which claimed the lives of 91 workmen who were on

duty. This action was brought on behalf of the heirs and

children of four of those mine workers who died in the

disaster. The four decedents in this case, John Rawson,

Glen Rossiter, Wayne Johnson and Donald Wood were all

working underground on the day of the fire. The dece-

dents were members of the United Steelworkers of Amer-

ica, Local 5089, on the day they died.

The underlying action asserts the right to recover

from the Petitioner for the wrongful death of these four

men pursuant to Idaho Code § 5-311. Idaho Code § 5-311

provides:

§ 5-311. Action for wrongful death - When a

death of a person is caused by the wrongful

act or neglect of another, his heirs or personal

representatives may maintain an action for dam-

ages against the person causing the death; or if

such person be employed by another person

who is responsible for his conduct, then also

against such other person. In every action under

this and the preceding section, such damages

may be given as under all circumstances of the

case may be just.

Respondent’s Complaint is couched in terms of negli-

gence and fraud.

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COURSE OF PROCEEDINGS

In 1975 Petitioner Union moved for summary judg-

ment on the grounds that Respondents’ cause of action

was preempted by § 9(a) of the National Labor Relations

Act of 19352 and § 301 of the Labor Management Rela-

tions Act of 1947.3

The trial court granted the Union’s motion on federal

preemption grounds on January 29, 1976. (Pet.App.F.

pp.161a-164a). The Idaho Supreme Court overruled the

trial court’s grant of summary judgment in Dunbar v.

United Steelworkers of America, 100 Idaho 523, 602 P.2d 21

(1979). (Pet.App.E. pp.107a-160a). The court addressed

the preemption issue as follows:

5 — pnd pen ~ claims are not necessarily

based on violation ae Se ae

sentation and such is not the only duty owed by

1 24

even of plaintiffs-appel-

of 2

lants fall the general scope

trine of preemption, nevertheless we deem it

' Respondents’ fraud claim did not survive review by the

Idaho Supreme Court. Rawson v. United Steclworkers, 111 Idaho

630, 716 P.2d 742 (1986).

2 29 U.S.C. § 15%a).

3 29 U.S.C. § 185.

4

clear that the case also falls within the narrow

exceptions to that same preemption doctrine

which were described in Farmer v. United

Brotherhood of Carpenters, 430 U.S. 290 (1977).

Pet.App.E. p.112a.

We are cited to no authority which indicates that

the duty of fair representation encompasses or

displaces those duties created by a state law

— — aig tion or an unin-

corporated association, to from enga

oan ti nia a or

injury to or property. . If a Union's

unreasonable conduct results in the death of one

of its members, it should not be excused from

liability because of the legal fo of its orga-

nizational status anymore than if its conduct

brought death to a nonunion member.

Pet.App.E. p.114a. (Emphasis added).

We believe the interests protected by state

wrongful death statutes are unrelated to those

governed by federal labor laws and we ascertain

no conflict which will necessarily arise between

the state and federal authorities as a result of

permitting such traditional litigation in the state

courts. We are cited to no authority which

would permit the National Labor tions

Board to take cognizance of wrongful death

claims against unions. We are cited to no author-

ity holding that it may be fairly inferred that

— ae 1 — 2 ee 2

powers of determining litiga 414

state wrongful death —— lton v.

Hake, 386 Irren ee

Prosser, Law of Torts § 127 (4th ed. 1971).

Pet.App.E. pp.115a-116a.

e - = - —

c

Subsequent to the court's remand in Dunbar, supra,

the Petitioner Union again moved for summary judgment

claiming that the facts of the case failed to establish any

duty on behalf of the Union to its members and again

raising the federal preemption issue. The trial court again

granted summary judgment for the Union specifically

disagreeing with the Idaho Supreme Court's ruling in

Dunbar and requesting that the court reconsider its pre-

vious holding.” (Pet. App. D. p. 102)

Upon appeal of this dismissal, the court initially

affirmed the trial court’s ruling. Pet App. C. pp.49a-88a).

Appellants moved for rehearing on their negligence

claim. Upon rehearing the Idaho Supreme Court reversed

the trial court’s grant of summary judgment concerning

the Plaintiffs’ negligence claim and remanded the case for

further proceedings. (Pet. App. B. pp.13a-48a).

The court acknowledged that the Union’s actions

characterized the basis of the negligence in Respondents’

claim not any contractual obligations. The court stated:

Moreover, the characterization of the Miners’

claim as one for mere nonfeasance which did

not increase the risk of harm is incorrect. As the

analysis below will demonstrate, the Union,

through its representatives, did embark u

safety , and the issue is whether

negligently performed their undertaking, or

whether the Union’s negligent performance

resulted in the men being subjected to increased

hazards or potential for death on the date of the

fire and explosion that would otherwise have

been the situation had the inspections been per-

formed without negligence.

make the safe — rather, the cause of

action is ised the Union igently per-

forming safety functions which it "in fact,

Pet.App.B. p.23a. (Emphasis added).

The court further noted:

The Miners assert that evidence was presented

to establish the following:

(1) John Rawson, Glen Rossiter, Wayne Johnson

and Don Wood did not have the use of self-

rescuers (oxygen masks and cannisters);

(2) Self-rescuers were stored in boxes with

padlocks;

(3) Some of the self-rescuers were eighteen years

of age and were corroded so that the valve

could not be turned to operate them;

(4) Some of the self-rescuers were inoperative

and others were used by miners who sensed

them getting hot and discarded them not know-

ing that the development of heat was an indica-

tion that the self-rescuer was working;

(5) The miners did not know how to use self-

rescuers that may have been available and had

not been trained in their use;

(6) No self-rescuers were stored at the 5,400

level where John Rawson and Glen Rossiter

were stationed; at other levels there were fewer

cannisters than the usual number of men work-

ing at those levels; and that there were only six

oa

units at the major escape route at the 3,100 foot

level.

(7) There were no periodic fire drills or evacur-

Because the Union, . [had] in fact, inspected the

mine, it owed the (minimal) duty to its members

. — arose further duty to advise the

any safety problems the inspection

revealed. Moreover, since an action for wrongful

Pet.App.B. p.34a. (Emphasis added).

The Union thereafter petitioned this Court for a Writ

of Certiorari. The Court granted certiorari and remanded

Rawson for further consideration in light of the recently

published case of IBEW v. Hechler, 481 U.S. 851 (1987). See,

Rawson, 482 U.S. 901 (1987).

Upon remand the Idaho Supreme Court reconsidered

Rawson regarding the sole issue directed by this Court:

[W)hether the state-law tort actions of the ——

tiffs herein are ed by § 301 of the Labor

Management Relations Act of 1947. .

Pet.App.A. p.3a.

The Idaho Supreme Court affirmed its opinion in

Rawson regarding federal preemption, distinguishing it

from the substantially different issue presented by the

Court in Hechler, supra. (Pet.App.A. p.3a). The Union

again seeks certiorari on the issue of preemption in order

to overturn the Idaho Supreme Court's final determina-

tion in Rawson.

ARGUMENT

Petitioner contends that “the Idaho Supreme Court's

decision on remand is inconsistent with this Court's deci-

sion in Hechler...” and “displays an unremitting hostil-

ity to federal preemption.” (Pet. for Writ of Cert., p. 21).

Respondent miners assert that the state tort claim in

Rawson is “‘independent’ of the collective-bargaining

agreement,” Lingle v. Norge Div. of Magic Chef, Inc.

US.__, 108 S. Ct. 1877 (1988); further, Rawson is distin-

guishable from Hechler, supra.

In Rawson the court is not faced with looking at the

Collective Bargaining Agreement (hereafter CB. A) in

order to interpret whether any duty was imposed by

contract. Rawson only requires an examination of the act

or conduct of the Union regardless of why the act was

undertaken and regardless of whether the act conformed

with any contract provision. Since the Union undertook to

inspect, and neligently performed that duty, this is an issue

“independent” of the C.B.A. and it must be left for the

trier of fact at trial to determine whether “that inspection

was negligently performed under Idaho tort law.”

(Pet.App.A. p.5a).

The Idaho court directly addressed the analysis in

Hechler and appropriately distinguished that case from

Rawson. In Hechler the Respondent conceded that the

“nature and scope of the duty of care owed [her] is

determined by reference to the collective-bargaining

agreement.” Hechler 481 U.S. at 851, fn.5; (Pet.App.A.

p.4a). The Court pointed out at footnote 5 of Hechler that

it was in her brief to this Court that Respondent argued

for the first time that her claim was “not dependent on

c

any interpretation of the collective-bargaining agree- C.B.A. to determine the nature of or extent of the duty

ment... Id. The Court concluded that “it is too late in owed to the mine workers.

the day for Respondent to present to the Court this new-

found legal theory.” Id. at 864. The following discussion in Hechler focuses the criti-

cal analysis that this Court later illuminated in Lingle,

As the Idaho Supreme Court noted: supra:

Thus, the instant case is clearly distinguishable Allis-Chalmers Court applied

from Hechler in that here the state tort basis of | 3

the action was not abandoned, but has been sideration of the terms of the labor contract” is

EDF under § 301, 471 US., at 213, and

te levels and the tort exists without reference to that the claim in Allis-Chal mers fell

the collective bargaining agreement within that The employee's a

there was that and its insurance

eee 1 1 company intentiona failed to make

stand for proposition that a federal LMRA required disability pa under a plan nego-

preemption exists in the instant case.

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b

that, in so doing, they had breached a state law

Pet.App.A. p.7a. (Emphasis added). insurance duty to act “in good faith” in paying

disability benefits. Id., at 206. The Court

The Idaho court's analysis is buttressed by this observed ‘a a aa — liability *

Hech . the the er w inevitably

rn involve interpretaion of the underlying calle

s allegations of assume tive-bargaining contract. First, the

significance if and only if the in fact, a ae ee agree-

32 of care that the complaint ment Lge a My

alleges the Union breached. requirement good

breached by its conduct. The Court

Hechler, 481 U.S. at 861. / [I}t is a of federal contract interpreta-

tion there was an obligation under this

— — = — e

Union, once performing inspections of the mine had a timely manner, and, if so, w s-

Chalmers’ conduct breached that implied con-

duty to do so in a non-negligent fashion. It is dramati- tract provision.” Id., at 215. Second, under the

cally different from Hechler in which the Union was only relevant state law, the duty of “good faith” on

alleged to have a contractual duty to engage in inspection which the plaintiff relied “intrinsically relate(d]

or lation of work to the nature and existence of the contract Id.

regu workplace safety. The Union did in fact - ~

at 216. The concept of “good faith” mean

actively engage in the duty of safety inspection in Rawson “being faithful to one’s or obligation.

and it is unnecessary to “reference,” let alone interpret the ibid., quoting Hilker d Western Automobile Ins.

—

9

2

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—

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3

*

3

irt

4

Rees

Hechler, 481 U.S. at 858-859.

The key to whether there is federal preemption under

§ 301 thus depends on whether it is necessary to interpret

the CB A, as noted in the above language from Hechler.

There is no issue in Rawson whether the Union fulfilled

its duty under the CBA Non-compliance or compliance

with the terms of he Cg A is irrelevant to the analysis of

this case. The focus under the state-based tort action is on

the actions or performance and whether the duty, once

undertaken, was negligently performed. Respondents’

tort claims do not rely upon nor are they “inextricably

intertwined with consideraton of the terms of the labor

contract.” Allis-Chalmers, 471 U.S. at 213.

The Court's decision in Lingle, supra, restated a con-

cise history of the critical § 301 cases. With respect to

Teamsters v. Lucas Flour Co, 369 US. 95 (1962), Justice

Stevens, for a unanimous court, noted that this Court was

“confronted with a straightforward question of contract

interpretation .” Lingle, _US._, 108 S.Ct. at 1880.

—

13

(Emphasis added). In Allis-Chalmers the scope of the con-

tract was ascertained from consideration of the contract

itself. Id. at 1881.

In discussing the retaliatory discharge case, Horton v.

Miller Chemical Co., 776 F.2d 1351 (CA7 1985), cert.

denied, 475 US. 1122, 106 S.Ct. 1641, 90 L.Ed.2d 186

(1986), the Court reasoned:

Each of the factual questions pertains to the

conduct ofthe employee and the conduct of the

employer. Neither the elements requires a

court to interpret any term of a collective-bar-

gaining agreement.

Lingle, 108 S.Ct. at 1882. (Emphasis added).

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

pendent” of the collecti agreement

in the sense of that matters for

§ 301 pre-emption purposes: resolution of the

state-law claim does not require construing the col-

lective-bargaining .

Id. (Emphasis added).

Als long as the state-law claim can be resolved

without i ing the 2 itself, the

rr. the agreement for

§ 301 pre-emption purposes.

Id. at 1883. (Emphasis added).

The Court then specifically expressed the delineation

between federal and state functions respecting § 301

preemption:

Today's decision should make clear that inter-

pretation of collective-bargaining agreements

remains firmly in the arbitral realm; . . . judges

een Gee 7 ee

14 15

can determine state law involving labor man- Rawson or superceded by Lingle. Hechler is distinguishable

ag — — —— not only because the separate tort claim was first raised on

= re _— ruing collective-bargaining appeal to this Court, but also because Hechler involved a

of instead of the mi that charac-

Second, there is nothing novel about recogniz- case of nonfeasance 0 misfeasance charac

ing that substantive rights in the labor relations **

context can exist without interpreting collective- The issue of nonfeasance versus misfeasance is not new

bargaining agreements. | to Idaho law. Huntley, J., makes the following reference in

Id. at 1884. (Emphasis added). ' his analysis in the majority opinion of Rawson:

’

Again, hat Recently, in Carroll v. United Steelworkers of

n America, 107 Idaho 717, 692 Pad 361 (1984), the

preemption depends on whether the C.B.A. must be inter- Court ruled that mere nonfeasance, even if it

preted or construed; the Court reiterates this notion in its | amounted to willful neglect to perform a con-

holding and accompanying footnote:

In sum, we hold that an application of state law

tract, is insufficient to establish duty in tort. In

Carroll, a Union member accused his Union of

iling to ve actions relative to

is pre-empted by § 301 of the Labor Manage- — gd 1 — gl

ment Relations Act of 1947 only if such applica- but did not allege ligent performance of

tion requires the interpretation of a collective-

those actions once ertaken. In Carroll, no

inspections were made. In the instant case, by

contrast, the safety committee did inspect the

mine and the miners allege not that the Union

members of the safety committee failed to

inspect, but that they actually performed the

bargaining agreement.

2... Thus, as a general proposition, a state law

claim may depend for its resolution upon

both the interpretation of a collective-bar-

— duty of inspection in a t manner and

— Se state — failed to report what have been obvious

— saf , the duty to report necessaril

In such a case, federal law would govern the Soudan Gatey Gp att 4f teapethen. Hence the

interpretation of the agreement, but the sep- instant case does not present a situation of non-

arate state law analysis would not be thereby

pre-empted. As we said in Allis-Chalmers feasance, but of malfeasance.

Corp. v Lueck, 471 U.S., at 211, 105 S.Ct., at Pet.App.B. pp.23a-24a. (Emphasis added).

pte Oo A —1 2 —— Petitioner relies upon Condon v. Local 2944, United

ing agreement is pre-empted by § 301. Steelworkers, Etc., 683 F.2d 590 (1982), a nonfeasance case:

Id. at 1885. (Emphasis added). Appellant has failed to demonstrate that any

material factual issues exist as to whether Local

Petitioner relies on various cases to support its peti- undertook any such duty. He was afforded

tion for certiorari, all of which are distinguishable from ample notice and opportunity to produce such

genuine

and that Local is entitled to judgment on all

counts as a matter of law.

Condon, 683 F.2d at 596.

Petitioner also relies upon Richardson v. United Steel-

workers of America, 864 F.2d 1162 (Sth Cir. 1989). Therein

the Court noted:

The duty which the Union allegedly breached is

described in the 1 petition as “a duty”

which the Union Aals the bargaining agent

for Plaintiffs” (emphasis added). No other

source of duty is alleged in the original petition.

Id. at 1165. The court appropriately noted that Richardson,

like Hechler, “does not present the question of whether

the Union was subject to ‘an independent state-law duty

of care arising simply from the relationship of a union

to its members Id. at 1167, citing Hechler. In Richardson

the Plaintiffs did not allege “any breach of a state tort

duty that exists independently of the NLRA-established

collective bargaining relationship . .” Id.

Contrary to Petitioner’s claims regarding preemption

in this case, Rawson is indistinguishable from Linn v.

United Plant Guard Wkrs. of Amer., Loc 114, 383 U.S. 53

(1966), and Farmer v. United Broth. of C. & J. of America,

Local 25, 430 U.S. 290 (1977), for the purpose of preemp-

tion analysis. Linn addressed the tort of defamation of

character and Farmer addressed the tort of intentional

infliction of emotional distress; both cases involved tort

actions distinct from the C.B.A. Without detailing the

valuable analysis of these opinions, the critical similarity

between Linn, Farmer and Rawson is that all three cases

17

involved an overt act characterized as either a misfeasance

or malfeasance, whereas Hechler was a pure and simple

case of nonfeasance which required an analysis of the

CB. A. to define the duty.

As this Court recognized in Allis-Chalmers, supra,

Congress never intended for national labor law to pre-

empt all state law claims. This is particularly true in

Rawson, as in Farmer, in which “the Board would lack

authority to provide the defamed individual with dam-

ages or other relief.” Linn, 97 S.Ct. at 1062. To preempt

Respondents’ claims herein literally leaves them without

remedy against an active tortfeasor whose misfeasance

has caused the loss of life. Perhaps the most compelling

argument against preemption in Rawson is that there

exists no available remedy under national la>or law for

the damages suffered by the miners’ widows and chil-

dren. What the Union demands in its Petition for Writ of

Certiorari is tort immunity for labor unions tantamount

to sovereign immunity not even enjoyed by the Federal

Government.

The analysis in Lingle establishes the appropriate

guidelines for assessing whether a Cg A. must be ter-

preted to grant relief or whether a state cause of action is

independent of federal labor concerns. There is no need to

further define the preemption analysis in Lingle by grant-

ing a Writ of Certiorari in Rawson.

>

CONCLUSION

In light of this Court's analysis in Hechler and Lingle,

and in light of the Idaho Supreme Court's analysis distin-

guishing Rawson and Hechler, there is no substance to

Petitioner’s request that certiorari be granted in this mat-

ter. The facts in Rawson are independent of federal labor

law concerns and preemption is therefore inappropriate.

Since the law is well-settled with regard to this case,

Respondents pray that Petitioner’s Writ of Certiorari be

summarily denied.

RESPECTFULLY SUBMITTED,

KennetH B. Howarp

San Francisco, CA 94111

Attorneys for Respondents

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