Opposition Brief — Mays v. Reynolds Metal Co.

No. 87-1189

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

DOYLE A. MAYS,

Petitioner

vs.

REYNOLDS METALS COMPANY,

a corporation,

Respondent

RESPONDENT’S BRIEF IN OPPOSITION

ohn H 0 aad

unsel of Record

Walter J. Sears, I

Richard H. Walston

BRADLEY, ARANT, ROSE & WHITE

1400 Park Place Tower

Bi Alabama 35203

(205) 252-4500

Tuscumbia, Alabama 35674

(205) 383-6457

QUESTIONS PRESENTED FOR REVIEW

1. Was the lower court correct in finding, under the

facts of the case, that Mays’ state law claims

were preempted by § 301?

2. Was the lower court correct in concluding that

failure to raise § 301 preemption at the trial level

did not serve as a waiver of § 301 preemption?

LIST OF PARTIES AND

STATEMENT REQUIRED BY RULE 28.1

The parties are Doyle A. Mays, Petitioner, and

Reynolds Metals Company, a corporation, Respondent.

The following are the subsidiaries and affiliates of

Respondent:

Subsidiaries

Alpart Farms (Jamaica), Ltd.

Alpart Jamaica Inc.

Alumina Partners of Jamaica

Aluminerie de Becancour Inc.

Aluminio del Caroni, S.A.

Aluminio Reynolds del Peru Sociedad Anonima

Aluminio Reynolds, S.A.

Aluminio Reynolds, Santo Domingo, S.A.

Aluminium Europe §.A., En Abrege: “Aleurope S.A.”

Aluminium-Oxid-Gemeinschaft Stade

Aluminium Oxid Stade Gesellschaft mit beschrankter

Haftung

Aluminum Corporation of the Philippines (dormant)

Arteaga, Sociedad Anonima, “Arteaga, S.A.”

Asociacion Venezolana de Adiestramiento y

Desarrollo del Aluminio (AVADAL)

Austria Dosen Gesellschaft mbH & Co. KG

Austria Dosen GmbH

Bevco Containers

Burrstone Associates

Compania Metallurgica Columbiana, S.A. “Comecol”

Egyptian Aluminium Products Company

Envases Valencianos, S.A.

Envases y Alimentacion Madrid, S.A.

Envases y Alimentacion, S.A.

Eskimo Europ, S.a.r.I.

Eskimo Pie Corporation

Eskimo Pie Corporation of Canada, Limited

Gerro Reynolds Dosenwerk GmbH & Co. KG

Halco (Mining) Inc.

Hamburger Aluminium-Werk Gesellschaft mit

beschrankter Haftung

Industria Navarra del Aluminio, S.A.

Industrias Lacteas del Yocoima, S.A.

Industrias Metal-Mecanicas del Quindio S.A.

Jamaica Alumina Security Company, Ltd.

Lynx-Canada Explorations Limited

Manicouagan Power Company - La Compagnie

Hydroelectrique Manicouagan

Mill Pond Development Corporation

Minas do Dragao Ltda.

Mineracao Rio do Norte S.A.

Mineracao Sao Jorge Ltda.

Mineradora de Bauxita Ltda.

Minerais de Aluminio Ltda.

Montaje de Plantas Montaplan, S.A. (inactive)

New Eastwick Corporation

Nuova Fonderpress S.p.A.

Omnia Minerios Ltda.

Pechiney Reynolds Quebec, Inc.

Phillips-C.B.A. Conductors Limited

Presidential Development Corporation

Presidential Manor Corporation

Presideuual Plaza Corporation

Reynolds Aluninio, Sociedad Anonima

Reynolds Aluminium Deutschland Internationale

Vertriebsgesellschaft mbH.

Reynolds Aluminium France

Reynolds Aluminium Holdinggesellschaft mgH

Reynolds Aluminum Company of Canada Ltd. -

Societe d’ Aluminium Reynolds

(Canada) Limitee

Reynolds Australia Alumina, Ltd.

Reynolds Kansas City Can Company

Reynolds Metals Development Company

Reynolds Philippine Corporation

Reynolds Regency Corporation

Reynolds Seattle Can Company

Reywest Development Corporation

RMC Holdings (Delaware), Inc.

Ruedas de Aluminio C.A. “RUALCA”

Sherkat Sahami Iran Aluminium

(Iranian Aluminium Co.)

SLIM Cisterna S.p.A.

Superenvases Envalic C.A.

UMCO, S.A.

Union Industrial y Astilleros Barranquilla

“Unial” S.A.

Volta Aluminium Company Limited

Weybosset Hill Development Corporation

Affiliates

Alternative Housing Associates

Becancour Joint Venture

Bennett Manor Associates

Broward Lakes Business Park Joint Venture

Bushnell Plaza Development Corporation

Capitol Hill Associates, Ltd.

Cathedral Square Associates

Cathedral Square Associates I

Chasco Woods Associates, Ltd.

Crown Oak Associates of Penfield

Curtis Apartments Associates

Cypress Courts Associates, Ltd.

Cypress Cove Associates, Ltd.

Drew Gardens Associates, Ltd.

Eastwick Joint Venture I

Eastwick Joint Venture IV

Kimbrook Manor Associates

Lakeside Village Associates

Midtown Associates

Mill Pond Towers Associates

Mount Gibson Joint Venture

The National Housing Partnership

Oceanside Estates Associates, Ltd.

One Empire Plaza Associates

Rayburn Manor Associates

Regency Joint Venture

Regency West Associates

Reynolds Gilbane Realty Associates

The Reynolds-Gilbane-Weybosset Joint Venture

Reynolds Metals Company and Associate, L.P.

Reywest Development Company

Southeast Vinyl Company

Titusville Manor Associates

Windermere Associates, Ltd.

Worsley Alumina Pty. Ltd.

Worsley Alumina Trust

Worsley Joint Venture

vi

TABLE OF CONTENTS

QUESTIONS PRESENTED

ee occ cccccscecbeboces i

LIST OF PARTIES AND STATEMENT

REQUIRED BY RULE 28.1 .................... ii

TABLE OF AUTHORITIES .................. viii

EEE occ coccccccccecccocosccccess 1

es ee os geveduabacwous 1

OEM MEUUEMEGUEEED cccccccccccccccccccececs 1

STATEMENT OF THE CASE .................. 2

REASONS FOR DENYING THE WRIT ......... 5

I. The Court Should Deny Review

of the Preemption Issue ............... 5

A. The Court Has Provided

Sufficient Guidance on

§ 301 Preemption in

Allis-Chalmers v. Lueck ........... 5

B. The Determination Of

Whether A Particular State

Law Tort Claim Is Pre-

= Mes Section 301

e r Management

Relations Act is Dependent

On The Facts Of Each Case ........ 6

C. There Is No Split Among

The Lower Courts ................ 6

vii

II. The Court Should Deny Review

GEG EEE cacddcccccesccecses

A. $301 Preemption Is Not

WEED “Sebsascccsedsccccccoccce

B. Review of the Waiver Issue

Is Not Warramted ....cccccccccces

COMCTAIEION cn cccccccccccccccccccccsccscess

viii

TABLE OF AUTHORITIES

_ Cases Page(s)

Allis-Chalmers Corp. v. Lueck, 4,5,6,

nn occas seneons 7,9,10

Caterpillar, Inc. v. Williams,

482 US. , 107 S. Ct. 2425 (1987) ........ 8,9

Gillis v. Reynolds Metals Co.,

No. CV-84-HM-5319-NW

(N.D. Ala. Jan. 27, 1986), aff'd

without op. 802 F.2d 1398

es nnn 6 0008eeeesee 6

Green v. Hughes Aircraft Co.,

630 F. Supp. 423 (S. D.Cal. 1985) ............ 6

Gre v. Simon Brothers, Inc.,

. Supp. 1252 (N.D. Ind. 1986) ........... 6

Internat’l Longshoremen’s Assn. v. Davis,

476 US. IE 8

San Diego Trade Council v. Garmon,

eos ne eeeeeeews 8

Strachan v. Union Oil Co.,

768 F.2d 708 (Sth Cir. 1985) ................. 6

Teamsters v. Lucas Flour Co.,

Ee 10

Tellez v. Pacific Gas & Electric Co., Inc.,

817 F.2d 536 (9th Cir.), cert.

denied, 108 S. Ct. 251 (1987) ................. 7

United Paperworkers v. Misco,

__US. , 108 S. Ct. 364(1987) .......... i)

Statutes

Section 301, Labor

Relations Act, 29 U.S.

ent

.$ 185

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

DOYLE A. MAYS,

Petitioner

vs.

REYNOLDS METALS COMPANY,

a corporation,

Respondent

RESPONDENT’S BRIEF IN OPPOSITION

Respondent, Reynolds Metals Company, respeci-

fully requests the Court to deny the petition for writ of

certiorari seeking review of the judgment of the

Supreme Court of Alabama entered in this case on

August 21, 1987, rehearing denied, October 23, 1987.

OPINION BELOW

The decision of the Supreme Court of Aiabama is

not yet reported, but is contained in Petitioner’s

Appendix.

JURISDICTION

The jurisdiction of the Court is invoked pursuant

to 28 U.S.C. § 1257(3).

STATUTE INVOLVED

Section 301, Labor Management Relations Act, 29

U.S.C. § 185.

2

STATEMENT OF THE CASE

On March 14, 1984, on the graveyard shift,

someone deliberately started a fire in the general

foreman’s office at the Reynolds Metals Company

plant in Sheffield, Alabama. The arsonist(s) rigged a

hose from a gasoline pump to feed this fire with

running gasoline. Fortunately, the fire was spotted

and extinguished before anyone was hurt. Respondent

Reynolds Metals Company ("Reynolds") moved swiftly

to investigate this serious threat to its employees and

its property. Reynolds immediately sent Raymond

Graham, an investigator from its industrial security

office in Richmond, Virginia, to Alabama. After

conducting his investigation, Mr. Graham reported to

local plant management that there were three

suspects, one of whom was petitioner Mays. (Tr. 600-

05) In his Statement of the Facts, Mays cites evidence

to show that he had an alibi. However, information

gathered by Graham from other Reynolds employees

called that alibi into serious question. (Tr. 566-85,

735-43, 1127-28, 1148-49, 1171-91, 1207-14) In the

interest of plant safety, Reynolds decided to suspend

the three suspects pending further investigation,

including a polygraph examination. (Tr. 1059-60)

The three men were notified of their suspension and

the date and time to appear for the polygraph by

telegram.

One of the three passed the polygraph and was

immediately reinstated. Mays and the third employee

failed the polygraph. As Mays points out in this

Statement of Facts, the polygraph examiner concluded

that Mays’ "no" answer to the following question was

not deceptive: “Did you set the fire in (the foreman’s]

office?” However, Mays does not add that the

polygraph examiner concluded that Mays’ "no

answers to the following questions were deceptive:

"Did you attach the rubber tubing to the gas pump

nozzle?" “Do you know who set the fire in [the

foreman’s] office?” "Did you participate in putting gas

in [the foreman’s] office?” "Did you break the window

in [the foreman’s] office?" (Tr. 1347-48; R.361) Mays

and the other employee who failed the polygraph were

terminated. They were notified of the termination by

telegram.

The terms of Mays’ employment with Reynolds

were governed by a collective bargaining agreement

(the "Agreement") between his union and Reynolds.

Article XVIII of the Agreement grants to Reynolds

"the right to discharge or lay off any employee for

sufficient and reasonable cause ...." Article XIX of

the Agreement establishes a grievance procedure to be

followed in the event of a dispute arising under the

Agreement, including a dispute over the termination

or suspension of an employee. Article XX of the

Agreement provides that any dispute between the

parties to the Agreement not satisfactorily resolved by

the grievance procedure shall go to binding

arbitration. Shortly after his termination, Mays filed

a grievance against Reynolds in connection with his

termination. The grievance eventually went to

binding arbitration after the trial in this case.

Mays filed this defamation action on May 25,

1984. At trial, the evidence against Reynolds

consisted of (1) a statement by Mr. Graham, the

Reynolds investigator, to another Reynolds employee,

whom Graham was questioning in the course of his

investigation, that, "he knew, you know, he thought

Doyle [the petitioner] was involved in the fire" (Tr.

434) and (2) the communication to Western Union of

the two telegrams to Mays which referred to

4

suspension, "for the purpose of continued investigation

regarding arson occurring at the plant.” (R. 309, 311)

The trial was held in April, 1985. There were

factual disputes regarding Mays’ alibi and the facts

unearthed by the Graham investigation. There were

also factual and legal disputes regarding the

applicability and the scope of the Alabama common

law of conditional privilege for defamatory

statements, including the degree and type of malice

required for liability.

The references in Mays’ Statement of Facts to

trial testimony regarding damages is not complete.

That testimony only linked the damages complained of

either to the firing of Mays or to a newspaper article

with which Reynolds had no involvement. There was

no testimony that the damages claimed by Mays were

in any way related to the allegedly defamatory

statement made by Mr. Graham to the Reynolds

employee during his investigation or to the

publication of the contents of the telegrams by

Reynolds to Western Union. (Tr. 117-27, 217-19,

416-48, 498, 511-29)

The trial resulted in a jury verdict against

Reynolds in the amount of $650,000. Reynolds

appealed this verdict to the Alabama Supreme Court

contending numerous errors in the jury instructions

regarding the law of libel and slander and related

issues of conditional privilege and malice. Reynolds

also contended, for the first time, and based on

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985),

which was decided after the commencement of the

trial in this case, that Mays’ state law claim for

defamation was preempted by § 301 of the Labor

Management Relations Act.

In July, 1985, after the trial in this case, the

binding arbitration under the collective bargaining

agreement was held. The arbitrator ruled for Mays

and reinstated him with back pay and full seniority

rights.

In an opinion filed August 21, 1987, the Alabama

Supreme Court ruled the §301 preemption was not

waivable and that Mays’ claim was preempted by

§ 301.

REASONS FOR DENYING THE WRIT

I. The Court Should Deny Review of the

Preemption Issue

The Court below correctly applied the standards

set forth in Allis-Chalmers v. Lueck, 471 U.S. 202

(1985), and its progeny to conclude, under the

particular facts of the case, that Mays’ state law

claims were preempted by § 301 of the Labor

Management Relations Act, 29 U.S.C. § 185 ("§ 301").

On that basis, as well as the bases presented below,

the Court should deny certiorari.

A. The Court Has Provided Sufficient

Guidance on § 301 Preemption in Allis-

Chalmers v. Lueck

Less than three years ago, the Court extensively

addressed the extent to which § 301 preempts state

law tort claims. Allis-Chalmers v. Lueck, 471 U.S.

202 (1985). In Lueck, the Court concluded that state

law torts are preempted where "evaluation of the tort

claim is inextricably intertwined with consideration of

the terms of the labor contract." Jd. at 213. As

discussed below, the lower courts have had no

difficulty in consistently applying that standard.

There is no need for further guidance and, hence, no

need for the court to grant certiorari to revisit this

issue.

B. The Determination Of Whether A

Particular State Law Tort Claim Is

Preempted Under Section 301 Of The

Labor Management Relations Act is

Dependent On The Facts Of Each Case.

This court recognized in Lueck that the

determination of whether a particular state law tort

claim is preempted under § 301 is dependent on the

facts of each particular case and, thus, must be

determined by the lower courts on a case-by-case basis.

Lueck, 471 U.S. at 220. A grant of certiorari is

singularly inappropriate where the determination of

the issue presented -- in this case, premption -- is

dependent on the specific facts of the case.

C. There Is No Split Among The Lower

Courts

The lower courts have uniformly applied Lueck

when addressing § 301 preemption; there is no split

among the courts regarding the legal standard to be

applied. Most courts addressing the issue have

concluded, with the court below, that defamation |

claims, under the facts presented in the particular

case, were preempted. See e.g., Strachan v. Union Oil

Co., 768 F.2d 703 (5th Cir. 1985); Gregory v. Simon

Brothers, Inc., 640 F. Supp. 1252 (N.D. Ind. 1986);

Green v. Hughes Aircraft Co., 630 F. Supp. 423 (S.D.

Cal. 1985); Gillis v. Reynolds Metals Co.,

No. CV-84-HM-5319-NW (N.D. Ala. Jan. 27, 1986)

aff'd without op., 802 F.2d 1398 (11th Cir. 1986) (Gillis

was a defamation suit, filed against Reynolds by

another of the three arson suspects, based on the same

factual allegations presented by Mays. Under

identical facts, the federal district court, affirmed by

the Eleventh Circuit, reached the same conclusion as

the Alabama Supreme Court in the instant case and

held that the claims were preempted.). However, the

fact that a court may have reached an opposite

conclusion, under the facts of its case, does not create a

conflict. It is true, as Mays notes, that the Ninth

Circuit has held -- under the facts presented to it --

that a defamation claim was not preempted. Tellez v.

Pacific Gas & Electric Co., Inc., 817 F.2d 536 (9th Cir.),

cert denied, 108 S.Ct. 251 (1987). However, that

decision was based on the facts of that case and was

not a decision that defamation is never preempted.

Thus, Tellez does not signal a split in the lower courts

on the applicable law.

Mays has tried to create a "certworthy" issue by

arguing that defamation is a "particularly abusive"

tort that should not be preempted. However, Mays

misses the mark. First, defamation is not necessarily

"abusive" or malicious, as the facts in the instant case

indicate. More importantly, abusiveness is well

accommodated in the Lueck framework. Certainly the

manner in which the tort is committed will bear on the

question of whether the evaluation of that claim is

"inextricably intertwinea" with the rights and duties

created by a collective bargaining agreement.

However, the presence or absence of malice is simply

one of the facts a court should consider in addressing

the issue. A mere allegation of malice does not

warrant modification of the analysis established in

Lueck, and does not warrant a grant of certiorari in

this case.

8

Il. The Court Should Decline Review of the

Waiver Issue.

Mays asks the Court to review the determination

of the Alabama Supreme Court that Reynold’s failure

to raise §301 preemption at the trial court level did

not constitute a waiver of that argument. Petitioner

seems to have included the issue as an afterthought,

for he does little more than assert that the Court

should grant certiorari because the Alabama Supreme

Court resolved the issue incorrectly. Petitioner’s

posture is thus no different than that of every other

party who has lost a case in a state supreme court or a

federal circuit court -- he may feel he has a basis for

arguing that the lower court erred, but that alone has

never been an adequate basis for securing review by

the Court.

A. §301 Preemption Is Not Waivable

Plaintiff's sole contention in support of a grant of

certiorari on the waiver issue is that the decision of the

court below is not supported by this Court’s decision in

Internat’l Longshoremen’s Assn. v. Davis, 476 U.S. 380

(1986). In Davis the Court concluded that Garmon

preemption (San Diego Trade Council v. Garmon, 359

U.S. 236 (1959)) was in the nature of subject matter

jurisdiction, which was not waivable, rather than in

the nature of an affirmative defense, which could be

waived under state rules of civil procedure. Contrary

to Mays’ assertion, the decision of the lower court here

is consistent with Davis because § 301 preemption is in

the nature of subject matter jurisdiction.

First, this Court has held that § 301 preemption is

extraordinary, having far greater legal effect than an

affirmative defense. Caterpiller, Inc. v. Williams, 482

U.S.__, 1107S. Ct. 2425, 96 L. Ed. 2d 318 (1987). As

discussed in that case, a federal affirmative defense to

state law claim will not supply subject matter

jurisdiction to a federal court, and hence will not

support removal of a case from state to federal court.

However, § 301 preemption does invest a federal court

with subject matter jurisdiction over a complaint

asserting only state law claims, making such a case

removable. Section 301 preemption operates to

"convert{ ] an ordinary state law complaint into one

stating a federal claim," and vests original subject

matter jurisdiction in the federal courts, justifying

removal. 96 L. Ed. 2d at 327. Hence, § 301 preemption

is not merely an affirmative defense and is more in the

nature of subject matter jurisdiction.

Second, under § 301, arbitration is the primary,

preferred and almost universally required forum for

the resolution of disputes relating to a collectively

bargained employment relationship. With rare

exception, a court (state or federal) must defer to the

jurisdiction of an arbitrator. See, Lueck, 471 U.S. at

219. (And must accord extraordinary deference if

called upon to review the decision of an arbitrator

United Paperworkers v. Misco, _ ___ U.S. _, 108 S.

Ct. 364, 56 USLW 4011, 4013-14 (December 1, 1987)).

Again, §301 preemption is more in the nature of

subject matter jurisdiction than of an affirmative

defense. !

1Although not cited by Mays, the court in Johnson v.

Armored Transport of California, Inc., 813 F.2d 1041 (9th Cir.

1987), reached a different conclusion. However, neither of the

above arguments was considered in that case. Furthermore, the

plaintiff in Johnson, unlike Mays, did not file an arbitration

along with his lawsuit and, again unlike Mays, did not win

reinstatement, full back pay and seniority rights in arbitration.

10

B. Review of the Waiver Issue Is Not

Warranted

Assuming, arguendo, that the court below erred, a

grant of certiorari would nonetheless be improvident

for the following reasons:

First, the case involves only the decision of a state

court to waive its local procedural rules in deference to

federal labor law; hardly a substantial federal

question. Additionally, since the issue has rarely

arisen, it does not appear to be a matter of national

importance or concern.

Second, because the issue has seldom been

addressed, the lower courts have not had occasion to

develop a body of law for the Court to consider. That

is, the issues have not percolated through the lower

courts to be sharpened or defined, and competing

considerations have not been weighed or analyzed.

Third, the decision of the Alabama Supreme Court

is consistent with federal labor policies favoring

uniform application of labor law and resort to the

grievance and arbitration machinery as the primary

and preferred forum for disputes arising out of the

employment relationship. In Lueck, which was

decided during the trial of the instant case, the Court

decided that § 301 preemption could encompass state

law tort claims. In reaching that conclusion, the Court

noted the "central role of arbitration" and that the

"need to preserve the effectiveness of arbitration was

one of the central reasons that underlay the Court’s

holding in Lucas Flour. [Teamsters v. Lucas Flour Co.,

369 U.S. 95 (1962)]" 471 U.S. at 219. Indeed, Mays’

rights were vindicated pursuant to an arbitration

award reinstating Mays with full back pay and

11

seniority rights. There is no federal policy favoring

“double-dipping.”

Finally, state courts are not a final, or even a

persuasive, source of federal law. Should the issue

arise in the future with sufficient frequency to justify

review by the Court, the Court will have a more

appropriate opportunity to consider the matter at that

time -- when the lower federal courts have analyzed

the matter sufficiently to provide a solid foundation for

review by this Court. At present, there is no

sufficiently important basis to warrant review.

CONCLUSION

Based on the foregoing, the Court should deny

the Petition for Writ of Certiorari.

Respectfully submitted,

John H. Morrow

Counsel of Record

Walter J. Sears, III

Richard H. Walston

BRADLEY, ARANT, ROSE

& WHITE

1400 Park Place Tower

Birmingham, Alabama 35203

(205) 252-4500

Braxton W. Ashe

J. Michael Tanner

ALMON, McALISTER, ASHE,

BACCUS & TANNER

P.O. Box 889

Tuscumbia, Alabama 35674

(205) 383-6457

12

CERTIFICATE OF SERVICE

I, the undersigned member of the Bar of the

United States Supreme Court, certify that I have

caused to be served three copies of this Brief in

Opposition upon Robert W. Walker, Walker &

Musgrove Attorneys, 226 West Alabama Street,

Florence, Alabama 35630 by causing same to be sent

by United States mail, postage prepaid and properly

addressed, on this the 25th day of March, 1988.

/s/ John H. Morrow

John H. Morrow

One of the Attorneys for

Reynolds Metals Company,

a corporation