# Reply Brief — Steelworkers v. Rawson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0666%3A05 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1990 - **Citation:** 495 U.S. 362 ## Text OcToBer TERM, 1989 Unrrep STEEL WORKERS oF America, AFL-CIO-CLC, v. Petitioner, THARON RAWSON, INDIVIDUALLY AND AS GUARDIAN AD LITEM FOR SetH Rawson AND CINDY RAWSON; BERNIECE JOHNSON, INDIVIDUALLY AND AS GUARDIAN Ap LITEM FOR MICHAEL WAYNE JOHNSON, RUTH ELLEN JOHNSON AND JOHN RUSSEL JOHNSON; LAURA DUNBAR, AS GUARDIAN AD LITEM FoR RICKINA ROSSITER AND GLEN RossiTer, JR.; AND MARY Woop, as GUARD IAN Ap Litem Por Lesiiz D. Woon, Respondents. On Petition for Writ of Certiorari to the hee sim PETITIONER'S REPLY BRIEF BERNARD KLEIMAN Suite 1910 One East Wacker Drive Chicago, Lllinois 60601 CARL FRANKEL Five Gateway Center Pittsburgh, Pennsylvania 15222 Georce H. ConEN (Counsel of Record) Rosert M. WEINBERG JULIA PENNY CLARK BRepHorr & KAISER 1000 Connecticut Ave., N.W. Suite 1300 Washington, D.C. 20086 (202) 833-9340 FREDERICK V. BeTTs Pau. D. CaREY James D. NELSON Betts, PATTERSON & MINES 1215 Fourth Avenue Seattle, Washington 98164 Attorneys for Petitioner Wueee . Gree Perms Co. nc. « 768-OCO86 . Waenmoeron. O C s000" o> ~ | — i eel In THE Supreme Court of the United States OcToBer TERM, 1989 No. 89-322 UNITED STEELWORKERS OF AmeRiIcA, AFL-CIO-CLC, . Petitioner, THARON RAWSON, INDIVIDUALLY AND AS GUARDIAN AD Litem FoR SETH RAWSON AND CINDY RAWSON; BERNIECE JOHNSON, INDIVIDUALLY AND AS GUARDIAN Ap Litem FoR MICHAEL WAYNE JOHNSON, RUTH ELLEN JOHNSON AND JOHN RUSSEL JOHNSON; LAURA DUNBAR, AS GUARDIAN AD LITEM For RICKINA ROSSITER AND GLEN RossITer, JR.; AND MARY Woop, as GUARD- IAN Ap Litem For LesLiz D. Woon, Respondents. On Petition for Writ of Certiorari to the Supreme Court of Idaho PETITIONER'S REPLY BRIEF 1. In reply to respondents’ opposition, it is important outset to make clear what is, and what is not, at in this case. Respondents’ opposition never joins with the legal questions presented in our petition. respondents rest their opposition on a characteri- of the case apparently designed to avoid those ques- respondents repeatedly assert or suggest that “actions” by the union. Br. also 9, 10, 12, 15, 16-17. In respondents’ gpeeeite ee keg? i words, this case “involve[s] an overt act characterized as either a misfeasance or malfeasance.” Id. at 16-17 (em- phasis in original). Based on that characterization, respondents assert a vehicle, causing injury to person or property, federal law preempt a state-law tort claim against the on that negligent conduct. Similarly, a state But that proposition has no application to this case. While respondents use words like “overt act” and “mal- feasance,” nowhere in their opposition do they identify years of this litigation, respondents have never alleged, and have never presented any evidence, that the union here did anything that created a risk of harm or that in- creased any preexisting risk of harm. In this regard, the facts as to what the union did or did not do in this case are simple and are not in dispute. First, the union entered into a contract with the com- pany, which permitted the union to designate a represen- tative “to accompany” the company’s safety engineer on the engineer’s monthly “tour of a section of the mine” (17la; see also Pet. at 4). The contract also permitted a mitted any affirmative act of negligence in the course of accompanying these inspectors. As the opinion of the Supreme Court of Idaho—as well respondents’ complaint and respondents’ opposition in this Court—makes clear, the alleged negligence here con- sists entirely of actions the union might have taken, but did not take, that might have led to the correction or mitigation of certain safety “deficiencies” tha already were present in the mine and that purportedly contrib- uted to the mine disaster. (27a-29a; Pet. at 5-6; see also Br. in Opp. at 6-7.) In the words of the Supreme Court of Idaho: (28a-29a ; see also Br. in Opp. at 7.) The two federal questions presented in our petition are thus squarely raised. The first question is clearly framed by what we have said to this point: Whether the federal 4 duty of fair representation preempts a state-law tort ac- tion that is based solely on the union’s alleged failure to take certain actions in the course of exercising its author- to enforce the safety provisions of the collective bar- gaining agreement. The second question is equally straightforward. Re- spondents and the court below assert that the union “un- dertook” a duty to inspect. (6a; Br. in Opp. at 9-10.) But such an undertaking could only be found in the col- lective bargaining agreement. Absent a contractually im- posed duty to inspect, a union does not have a general duty to discover and report safety hazards; and a state could not impose such a duty consistent with federal labor law. Accordingly, the second question here is also di- rectly presented: whether federal law—in particular, § 301 of the Labor Management Relations Act—preempts state law on the disputed question of whether the collec- tive bargaining agreement imposed a duty upon the union to discover and report safety hazards. 2. In their opposition, respondents do not directly ad- dress the first question presented in the petition. Respond- ents do not dispute the preemptive effect of the duty of fair representation, or the importance of the duty’s appli- cation to union activities related to safety, or the need for this Court to address that question in this case. Two points, however, merit a brief reply. First, lest respondents’ opposition raise any confusion on the point, it is important to make clear that the issue of how to characterize the union’s activities in connection with inspections has no relevance to the first question presented in the petition. The question of duty of fair representation preemption is squarely raised whether the union “inspected” the mine or whether the union only “accompanied” those who inspected the mine. Whatever the characterization, the undisputed facts are that the union was engaged in the activities that were authorized by the safety article of the collective bargaining agree- Opp. at 15. Putting aside whether those characterizations are correct, this is a distinction without a difference. Whatever significance the distinction between nonfeasance and misfeasance may have for Idaho law, id., it has no significance for the principles that underlie the federal duty of fair representation. This Court has never drawn a distinction between “nonfeasance” and “misfeasance” either in defining a union’s duty of fair representation or in drawing the bounds of federal preemption. In any event, the opinion in Condon leaves no doubt that that case conflicts squarely with the decision of the Supreme Court of Idaho on the first question presented. The First Circuit stated: , :? He au : if tH | P : 2 EE + cf t ¥ e... conclude that a union cannot be held liable for the negligent performance of a duty it assumed that arose inextricably, as here, from the safety and health provisions of a collective bargaining agree- ! Indeed, the claim in Condon presents a striking parallel to the claim in this case. The plaintiff in Condon was burned when sparks from a welding torch set his shirt on fire. Jd. at 591. He alleged that the union had “negligently failed to carry out” its alleged duty “to ensure that the equipment on the premises was in a safe operat- ing condition and that sufficient fire safety equipment was avail- able.” Jd. at 592-98. These allegations are, for all practical pur- poses, identical to respondents’ allegations that the union in this case negligently “failed to require” fire drills, personal protective | i F | 3. case was “an active tortfeasor,” the preemption questions are governed by Linn v. Plant Guard Workers Local 144, 383 U.S. 53 (1966), and Farmer v. Carpenters Local 25, 430 U.S. 290 (1977). Br. in Opp. at 16-17. As we have shown, the label “active tortfeasor” cannot accurately be applied to the allegations of negligence in this case. But even if the iabel were appropriate, those allegations of negligence do not rise to the level of the intentional torts that this Court allowed state law to redress in Linn and Farmer. 4. Respondents suggest that this Court’s decision in Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S. Ct. 1877 (1988), is somehow determinative in this case. Br. in Opp. at 9, 12-13, 17. As we show, however, the only bearing Lingle has on this case is that it reconfirms the analysis of this Court’s decision in IBEW v. Hechler, 481 U.S. 851 (1987), on which we rely in connection with the second question presented. equipment, and adequate emergency egress from the mine. See Pet. at 6, Br. in Opp. at 6-7. ! : ; : - i : 3 | z 7 — —_——_— A ee se ee & nm = ze ? " é Hit s : i by that collective bargaining agreement (33a). Respond- ents contend that the agreement created a duty to “in- spect” the mine; the union contends that the agreement gave it a right, but not a duty, to perform a far more limited function—i.e., to “accompany” those who did have a duty to inspect the mine. Pet. at 3-4, 23-24; see also, p. 2-3, supra. The scope of the union's duty, if any, in connection with inspections of the mine is necessarily de- pendent on what the agreement authorized the union to do, and that question could not be decided without inter- preting the disputed provisions of the agreement. the agreement authorized. Pet. at 9, 23-24. Significantly, respondents make no attempt to defend the assertion that there was such a concession. Rather, they simply assert, without any record support, that the union “did in fact actively engage in the duty of safety inspection.” Br. in Opp. 10. Section 301 preemption cannot be avoided either by pretending that the union made a concession it did not make or by pfetending that there is evidence that the union was engaged in inspecting. The facts on this point are not in dispute: union representatives were present during some inspections of the mine. What is in dispute is the function of those representatives: were they carrying out a duty to “inspect” the mine or were they exercising the union's right to “accompany” those who were inspecting the mine. That dispute cannot be resolved without interpreting the collective bargaining agreement. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0666%3A05. Public record. Not legal advice.