# Opposition Brief — Mays v. Reynolds Metal Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0698%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 486 U.S. 1050 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0698%3A2. Public record. Not legal advice.