Amicus Curiae Brief — Steelworkers v. Rawson

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No. 89-322 | Fea 9 19%

IN THE JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE UNITED|STATES*

October Term, 1989

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

Petitioner,

VS.

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 JOPN RUSSEL

JOHNSON; LAURA DUNBAR, AS GUARDIA? 1D LITEM

FOR RICKINA ROSSITER AND GLEN ROSSITER. JR.;

AND MARY WOOD, AS GUARDIAN AD LITEM FOR

LESLIE D. WOOD,

Respondents.

On Writ of Certiorari To The

Supreme Court of Idaho

BRIEF OF CONTINENTAL BEVERAGE

PACKAGING, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONER UNITED

STEELWORKERS OF AMERICA, AFL-CIO-CLC

ROBERT A. CHRISTENSEN*

STANLEY S. JASPAN

SUSAN R. MAISA

Foley & Lardner

777 East Wisconsin Avenue

Milwaukee, Wisconsin 53202-5367

(414) 271-2400

*Counsel of Record

Attorneys for Amicus Curiae

Continental Beverage

Packaging, Inc.

Te ee ay ea ee = ar Perr

a tl

| SUMMARY OF ARGUMENT

Z ARGUMENT

a CLAIMS WHICH ARE FOUNDED ON RIGHTS

q CREATED BY THE SUBSTANTIVE PROVISIONS

F OF A COLLECTIVE BARGAINING AGREEMENT

ARE PREEMPTED BY § 301................

4 CONCLUSION

\»

> ,

4 a

¢ -

om”

TABLE OF AUTHORITIES

CASES: Page ‘

Allis-Chalmers Corp. v. Lueck,

RS Ee eee 3,4,8

Alpha Beta, Inc. v. Superior Court (Nahm),

198 Cal. App. 3d 1390, 244 Cal. Rptr. 414, cert.

denied, 109 S. Ct. 392 (1988) ............... 6

Aubuschon v. International Mill Serv. ,

123 Ill. 2d 555, 530 N.E.2d 976 (1988), cert.

denied, 109 S. Ct. 3157 (1989) .............. 6

Berda v. CBS Inc.,

881 F.2d 20 (3d Cir. 1989), cert. denied,

58 U.S.L.W. 3466 (U.S. Jan. 22, 1990)

ee eS utile aias 6 keh bees Gbeses os 5

Birtell v. Lockheed-California Co..,

201 Cal. App. 3d 293, 247 Cal. Rptr. 86 (1988),

cert. denied, 10° S. Ct. 869 (1989)........... 6

Caterpillar, Inc. v. Williams,

eR onc ckincncicceaseecneuss 4.5

Cleary v. Michigan Bell Tel. Co.,

880 F.2d 1321 (6th Cir. 1989), cert. denied, 38

U.S.L.W. 3465 (U.S. Jan. 22, 1990) (No. 89-844) 5

Deford v. Soo Line R.R.,

867 F.2d 1080 (8th Cir.), cert. denied, 109 S. Ct.

ne si cunnes's 5.6

Hammond v. Terminal R.R. Ass'n,

848 F.2d 95 (7th Cir. 1988), cert. denied, 109

EEE EE me em 6

International Ass'n of Machinists & Aerospace Workers

v. United States Can Co.,

150 Wis. 2d 479, 441 N.W.2d 710 (1989), cert.

denied, 110 S. Ct. 718 (1990). .............. 6

CASES: Page

International Brotherhood of Electrical Workers v.

Hechler,

EES EES OTE 3,4,7,8

Jackson v. Liquid Carbonic Corp.,

863 F.2d 111 (ist Cir. 1988), cert. denied, 109

“SS re 4

Jones v. Truck Drivers Local Union No. 299,

838 F.2d 856 (6th Cir. 1988), cert. denied, 110

ES EEE POT TTT Te 6

LePore v. National Tool & Mfg. Co.,

115 N.J. 226, 557 A.2d 1371, cert. denied, 110

EEE ES 6

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

Eee 4,5

McCall v. Chesapeake & Ohio Ry.,

844 F.2d 294 (6th Cir.), cert. denied, 109 S. Ct.

MS cao dvelcy see cocccccee 6

Miller v. Publishers Paper Co.,

861 F.2d 268 (9th Cir. 1988), cert. denied, 109 S.

ed a Snes 06d ce'e cc ave. 6

Pet, Inc. v. Buckner,

No. 65,989 (Okla. Ct. App. Oct. 20, 1987), cert.

denied, 109 S. Ct. 60 (1988) ................ 6

Rawson v. United Steelworkers,

111 Idaho 630, 726 P.2d 742 (1986), vacated, 482

U.S. 901 (1987), on remand, 115 Idaho 785, 770

P.2d 794 (1988), cert. granted, 110 S. Ct. 714

ese ce a sud bsaccccceveees. 6,7

Smolarek v. Chrysler Corp.,

879 F.2d 1326 (6th Cir.) (en banc), cert. denied,

se bcos cuwgecndsksees 5,6

CASES: Page

Teamsters v. Lucas Flour Co.,

I be as ole oo KK ews 3,8

Terwilliger v. Greyhound Lines, Inc.,

882 F.2d 1033 (6th Cir.), petition for cert. filed,

58 U.S.L.W. 3430 (U.S. Dec. 22, 1989) (No.

Oe en eee G se Wedd cle} oi « 5,6

Textile Workers v. Lincoln Mills,

EN EE 3

United States Can Co. v. International Ass'n of

Machinists & Aerospace Workers,

No. 89-508 (October Term 1989) ............ 2

Utility Workers, Local No. 246 v. Southern Cal.

Edison Co.,

852 F.2d 1083 (9th Cir. 1988), cert. denied, 109

ES nn ne ee 6

Wells v. General Motors Corp-,

881 F.2d 166 (Sth Cir.), petition for cert. filed, 58

U.S.L.W. 3469 (U.S. Dec. 27, 1989) (No. 89-1067) 5

Wilkinson v. Safeway Stores, Inc.,

879 F.2d 866 (9th Cir.), cert. denied, 110 S. Ct.

PENT CS dedVub lk aesneccabiebisens 5

STATUTES:

i rey re me 1 ,2,3,4,5,6,8

No. 89-322

IN THE

SUPREME COURT OF THE UNITED STATES ~—

October Term, 1989

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC,

Petitioner ,

vs.

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, AS GUARDIAN AD LITEM

FOR RICKINA ROSSITER AND GLEN ROSSITER, JR.;

AND MARY WOOD, AS GUARDIAN AD LITEM FOR

LESLIE D. WOOD,

Respondents.

On Writ of Certiorari To The

Supreme Court of Idaho

BRIEF OF CONTINENTAL BEVERAGE

PACKAGING, INC. AS AMICUS CURIAE

IN SUPPORT OF PETITIONER UNITED

STEELWORKERS OF AMERICA, AFL-CIO-CLC

Continental Beverage Packaging, Inc. (*“Continental’’), with the

consent of all parties, files this brief as amicus curiae in support of

Petitioner United Steelworkers of America (*‘Steelworkers’’). Con-

tinental urges the Court to reverse the judgment of the Supreme Court

of the State of Idaho on the specific ground that the Respondents’

claims are preempted by § 301 of the Labor Management Relations

— —

Act because the duties which Respondents claim are owed to them

by Steelworkers are created by the collective bargaining agreement

between Steelworkers and Respendents’ decedents’ employer. '

INTEREST OF AMICUS CURIAE

Continental is party to United States Can Co. v. International

Association of Machinists & Aerospace Workers, No. 89-508 (Oc-

tober Term 1989). On January 8, 1990, this Court denied Continen-

tal’s petition for certiorari to review a decision of the Wisconsin

Supreme Court holding that a state claim, arising under Wisconsin's

version of the Uniform Fraudulent Conveyance Act, to enforce the

economic terms of a collective bargaining agreement was not pre-

empted by § 301 of the Labor Management Relations Act. As of the

date of submitting this brief amicus, Continental has a petition for

rehearing from the denial of that petition pending before this Court.

Continental believes that the reversal of the decision of the Idaho

Supreme Court on the specific ground urged in this brief would com-

pel reversal or remand of the decision of the Wisconsin Supreme

Court in Case No. 89-508.

SUMMARY OF ARGUMENT

Amicus submits that the analysis of which claims asserted by

parties to collective bargaining agreements against other parties to

such agreements are preempted, would be simplified and sharpened

by requiring courts to focus their attention on the issue of whether

the substantive right being asserted was created by the provisions

of a collective bargaining agreement. This analysis, which is suffi-

cient to reach a correct result in nearly all § 301 preemption cases,

including the instant case, is essential to comprehensive preemption

of collective bargaining issues and is easier to apply than an analysis

of whether ‘‘substantial analysis’’ or ‘substantial interpretation’’ is

required.

‘Amicus does not mean to suggest that other grounds for reversal are not present-

ed, but Amicus has no interest in those.

ARGUMENT

CLAIMS WHICH ARE FOUNDED ON RIGHTS

CREATED BY THE SUBSTANTIVE PROVISIONS

OF A COLLECTIVE BARGAINING AGREEMENT

ARE PREEMPTED BY § 301.

By its express terms, § 301 of the Labor Management Relations

Act provides a jurisdictional basis for federal courts to hear ‘*[s]uits

for violation of contracts between an employer and a labor organi-

zation representing employees.’’ 29 U.S.C. § 185(a). This Court has

consistently construed § 301 to do ‘‘more than simply confer juris-

diction on federal courts to hear suits charging violations of collective-

bargaining agreements. . . . ‘[It is] a congressional mandate to the

federal courts to fashion a body of federal common law to be used

to address disputes arising out of labor contracts.’ *’ /nternational

Brotherhood of Electrical Workers v. Hechler, 481 U.S. 851, 855-56

(1987) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209

(1985)); Textile Workers v. Lincoln Mills, 353 U.S. 448, 450-51

(1957). In order to fulfill this mandate, * ‘‘substantive principles of

federal labor law must be paramount in the area covered by

[§ 301].’ '’ Hechler, 481 U.S. at 856 (quoting Teamsters v. Lucas

Flour Co., 369 U.S. 95, 103 (1962)).

With these principles well settled, this Court commenced in Lueck

to define the boundaries of the *‘area covered by § 301.*" In Lueck,

this Court held that an attempt to assert a claim arising under state

law was preempted by § 301 if it was grounded in a collective bar-

gaining agreement:

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

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

beyond suits alleging contract violations. These policies require

that ‘‘the relationships created by [a collective-bargaining]

agreement’’ be defined by application of ‘‘an evolving federal

common law grounded in national labor policy.’’ . . . Thus,

questions relating to what the parties to a labor agreement

agreed, and what legal consequences were intended to flow from

' breaches of that agreement, must be resolved by reference to

uniform federal law, whether such questions arise in the con-

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

in tort. Any other result wouid elevate form over substance and

allow parties to evade the requirements of § 301 by relabeling

their contract claims as claims for tortious breach of contract.

471 U.S. at 210-11 (citation omitted) (emphasis added).

In Hechler, this Court applied the principles stated in Lueck to

hold that an attempt to assert a claim for negligent performance of

a duty created by a collective bargaining agreement was preempted

by § 301:

Under the principle[s] set forth in Allis-Chalmers, we must

determine if respondent's claim is sufficiently independent of

the collective-bargaining agreement to withstand the pre-emptive

force of § 301.

. . . [Respondents’ claim is not sufficiently independent

because] [i]n order to determine the Union’s tort liability . . .

a court would have to ascertain, first, whether the collective-

bargaining agreement in fact placed an implied duty of care on

the Union to ensure that Hechler was provided a safe work-

place, and, second, the nature and scope of that duty ... .

481 U.S. at 859, 862.

The holdings of Lueck and Hechler were summarized in Cater-

piliar, Inc. v. Williams, 482 U.S. 386 (1987):

Section 301 governs claims founded directly on rights created

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

tially dependent on analysis of a collective-bargaining

agreement.”’

Id. at 394 (quoting Hechler, 481 U.S. at 859 n.3).

The foregoing passage from Williams was quoted with approval

in Lingle v. Norge Division of Magic Chef, Inc., 108 S. Ct. 1877,

1883-84 n. 10 (1988), the most recent § 301 preemption case. In Lin-

gle, this Court held that a state claim for retaliatory discharge for

+. —-— -

asserting a workers compensation claim was not preempted. Because

it was perfectly apparent that the tort of retaliatory discharge was

not, in any sense of the word, ‘‘founded directly on rights created

by [the] collective bargaining agreement,’’ this Court addressed only

the issue of whether the claim required interpretation of the collec-

tive bargaining agreement and concluded it did not:

Thus. the state-law remedy in this case is ‘‘independent’’ of

the collective-bargaining agreement in the sense of *‘indepen-

dent’’ that matters for § 301 pre-emption purposes: resolution

of the state-law claim does not require construing the collective-

bargaining agreement.

Id at 1882.

There is certainly no affirmative suggestion in Lingle that claims

based on ‘‘rights created by’’ a collective bargaining agreement were

no longer preempted, and the citation of Williams confirms that there

was no intent to remove such claims from the scope of § 301 preemp-

tion. However, analysis of § 301 preemption has suffered subsequent

to Lingle because the lower courts have relied on the phrase ‘‘appli-

cation of state law is pre-empted by § 301 . . . only if such applica-

tion requires the interpretation of a collective-bargaining agreement, ”’

Lingle, 108 S. Ct. at 1885, to skip over or give short shrift to the

issue of whether the rights sued upon were “‘created by’’ the collec-

tive bargaining agreement in issue. Treating the cases presented to

this Court on § 301 preemption or Railway Labor Act § 3 preemp-

tion since Lingle as typical of all lower court deci:.ions, out of twenty

such cases,” only one, Terwilliger v. Greyhound Lines, Inc. , 882 F.2d

2See Terwilliger v. Greyhound Lines, Inc., 882 F.2d 1033 (6th Cir.). petition

for cert. filed, $8 U.S.L.W. 3430 (U.S. Dec. 22, 1989) (No. 89-999): Wells v.

General Motors Corp., 881 F.2d 166 (Sth Cir.), petition for cert. filed, 58 U.S.L.W.

3469 (U.S. Dec. 27, 1989) (No. 89-1067); Berda v. CBS Inc., 881 F.2d 20 (3d

Cir. 1989). cert. denied, 58 U.S.L.W. 3466 (U.S. Jan. 22, 1990) (No. 89-589):

Cleary v. Michigan Bell Tel. Co., 880 F.2d 1321 (6th Cir. 1989), cert. denied,

58 U.S.L.W. 3465 (U.S. Jan. 22, 1990) (No. 89-844): Smolarek v. Chrysler Corp...

879 F.2d 1326 (6th Cir.) (en banc), cert. denied, 110 S. Ct. 539 (1989); Wilkinson

v. Safeway Stores, Inc., 879 F.2d 866 (Mh Cir.), cert. denied, 110 S. Ct. $40 (1989);

Deford v. Soo Line R.R., 867 F.2d 1080 (8th Cir), cert. denied, 109 S. Ct. 3265

1033 (6th Cir. 1989), petition for cert. filed, 58 U.S.L.W. 3430 (U.S.

Dec. 22, 1989) (No. 89-999), clearly analyzes the **cgeated by’’ and

the ‘‘interpretation’’ bases of § 301 preemption as separate tests:’

Thus, in evaluating Terwilliger’s claim, we must determine

first, whether resolution of Terwilliger’s state-law claim of fraud

and misrepresentation requires interpretation of the terms of

the collective bargaining agreement such that this claim should

have been decided by arbitration . . . and second, whether his

claim is based on rights created by the collective bargaining

agreement or under state law.

Id. at 1037.

Terwilliger concluded that both tests were met because the em-

ployer was found to have failed to abide by the terms of the agree-

(Continuation of Footnote 2)

(1989); Jackson v. Liquid Carbonic Corp. , 863 F.2d 111 (ist Cir. 1988), cert. de-

nied, 109 S. Ct. 3158 (1989); Miller v. Publishers Paper Co. , 861 F.2d 268 (9th

Cir. 1988), cert. denied, 109 S. Ct. 3160 (1989), Usility Workers, Local No. 246

v. Southern Cal. Edison Co., 852 F.2d 1083 (9th Cir. 1988), cert. denied, 109

S. Ct. 1530 (1989); Hammond v. Terminal R.R. Ass'n, 848 F.2d 95 (7th Cir. 1988).

cert. denied, 109 §. Ct. 1170 (1989); McCall v. Chesapeake & Ohio Ry. , 844 F 2d

294 (6th Cir.), cert. denied, 109 S. Ct. 196 (1988); Jones v. Truck Drivers Local

Union No. 299, 838 F.2d 856 (6th Cir. 1988), cert. denied, 110 S. Ct. 404 (1989).

Birtell v. Lockheed-California Co. , 201 Cal. App. 34 293, 247 Cal. Rptr. 86 (1988).

cert. denied, \U9 S. Ct. 869 (1989); Alpha Reta, Inc. v. Superior Court (Nahm).

198 Cal. App. 3d 1390, 244 Cal. Rptr. 414, cert. denied, 109 S. Ct. 392 (1988);

Rawson v. United Steelworkers, 115 idaho 785, 770 P.2d 794 (1988), cert. grant-

ed, 110 S. Ct. 714 (1990); Aubuschon v. International Mill Serv., 123 Wi. 2d 555.

530 N.E. 2d 976 (1988), cert. denied, 109 S. Ct. 3157 (1989); LePore v. National

Tool & Mfg. Co., 115 N.J. 226, 557 A.2d 1371, cert. denied, 110 S. Ct. 366 (1989).

Pet, Inc. v. Buckner, No. 65,989 (Okla. Ct. App. Oct. 20, 1987). cert. denied.

109 S. Ct. 60 (1988); International Ass'n of Machinists & Aerospace Workers v.

United States Can Co., 150 Wis. 24 479, 441 N.W.2d 710 (1989). cert. denied,

110 S. Ct. 718 (1990).

Terwilliger claims that Smolarek v. Chrysler Corp. , 879 F.2d 1326, 1331 (6th

Cir.) (en banc), cert. denied, 110 S. Ct. 539 (1989), applied the same analysis.

While that claim may be true, Smolarek 's analysis is certainly not as crisply divid-

ed into two parts as is Terwilliger’s.

ment — which would require interpretation — and the claimed right

to reinstatement arose solely from the collective bargaining agree-

ment — i.e., was ‘‘created by’’ the collective bargaining agreement.

In order to prevent the lower courts from mistakenly assuming

that the *‘rights created by’’ test for preemption has been abandoned

by this Court, it is essential that this Court clearly rearticulate and

apply that test in the instant case.

There can be no question that the collective bargaining agree-

ment in the instant case imposed a duty of inspection on the Steel-

workers. The majority and dissenting opinions below, prior to

remand, agreed that the collective bargaining agreement did impose

safety obligations on the Steelworkers:

The Collective Bargaining Agreement provided for the Union's

safety inspection function. which service was bought and paid

for by union dues.

. . . Because the Union, pursuant to the provisions of the

collective bargaining agreement, had contracted to inspect and,

in fact, inspected the mine, it owed the (minimal) duty to its

members to exercise due care in inspecting and in reporting

the findings of its inspection.

Rawson v. United Steelworkers, 726 P.2d 742, 747, 750 (Idaho 1986),

vacated and remanded, 482 U.S. 901 (1987).

[T]he collective bargaining agreement [in question] provided

for the formation and membership of the Safety Committee and

set forth the duties of the Safety Committee.

Id. at 763 (Bakes, J., dissenting).

Given the one-time agreement of the entire Idaho Supreme Court

that the Respondents’ claims are based on rights created by the col-

lective bargaining agreement, there can be no doubt that these claims

are preempted under the ‘‘created by"’ test. Indeed, Hechler expressly

held, on nearly identical facts, that when ‘‘the collective-bargaining

agreement in fact placed an implied duty of care on the Union to

ensure that Hechler was provided a safe workplace,"’ a claim for

breach of that duty is preempted. 481 U.S. at 862.‘

It is important that this Court expressly state that Respondents’

claims are preempted on the ground that the Respondents’ claims

are based on rights created by the collective bargaining agreement.

First, it is, after all, *‘suits for violations’’ of collective bargaining

agreements which are expressly, although not exclusively, preempted

by § 301. Therefore, it is most logical to inquire first whether a vio-

lation is clairsd, i.e., if the claim asserts breach of a right or duty

created by th greement. That inquiry is sufficient to decide preemp-

tion here. It is » ficient to explain the result in Lueck and all this

Court's subsequem decisions. It should be sufficient to decide most

§ 301 cases.

Second, as this Court stated in Teamsters v. Lucas Flour Co.,

369 U.S. 95, 103 (1962), § 301 preemption must be *‘comprehen-

sive."’ ‘‘Comprehensive’* preemption requires that every right which

is created by provisions of a collective bargaining agreement be de-

termined according to federal law. Otherwise the provision of its

agreement may have different legal effects in different jurisdictions.

This is not just a question of interpretation; federal labor policy re-

quires that the effect of the provisions of a collective bargaining agree-

ment be uniform. See Lueck, 471 U.S. at 210-11. Uniformity can

be lost as quickly through applying varying state remedies to crystal

clear contractual language as it can through various interpretations

of ambiguous language. Therefore, § 301 must preempt ail claims

which are based on rights contained in a collective bargaining agree-

ment or “‘comprehensive’’ preemption will be lost.

Finally, the *‘rights created by’’ analysis offers a much simpler

analysis than “‘interpretation.’’’ It is comparatively easy to deter-

“It is equally true that Hechler leaves no doubt that questions of contract in-

terpretation underlie any finding of tort liability on the facts of this case. see 481

U.S. at 862, but the goal of Amicus is to encourage the Court not to rely on that

ground alone.

*This is not to say that interpretation is not a proper ground for preemption,

only that it should not be necessary to reach that ground in most cases.

mine whether a necessary element of a claim includes reliance on

the terms of a contract. It is clearly in the interests of efficient ad-

ministration of justice that a simple test be applied if at all possible.

CONCLUSION

For the reasons stated above, Amicus respectfully suggests that

the decision of the Idaho Supreme Court be reversed and the cause

be remanded with instructions to dismiss the case, on the ground that

the Respondents’ claims are based on rights created by a collective