# Opposition Brief — Bechtel Power Corp. v. United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of United States & Canada, Local 57 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1615%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 486 U.S. 1055 ## Text ‘iat Supreme Court, U.S. \G RILED No. 87-1690 MAY 10 1988 OSEPH F. SPANIOL, JR. - CHERK In The Supreme Court of the United States October Term, 1987 >. Vv BECHTEL POWER CORPORATION, Petitioner, Vs. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE- FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 57, JAMES K. HOUSE- KEEPER AND JAY E. TRINNAMAN, Respondents. fay Vv RESPONSE TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ray Vv JosEPH EK, Trescu Attorney for Respondents 1821 Sidewinder Drive P. O. Box 3390 Park City, Utah 84060 Telephone: (801) 649-5700 COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 or call collect (402) 342-2831 [a “a QUESTION PRESENTED Whether a cause of action in state court based en- tirely upon state prohibited blacklisting is preempted by Section 301 where the parties have executed a collective bargaining agreement in which some terms of hiring and discharge have been agreed upon. ii TABLE OF CONTENTS Page (Question Freneiet, nceccispaccpanadeeiaeee i Opiates DOW eee 2 PUP: ncninininssiaiicmsnacenaenneaae ected, 2 Statutory Provisioms Tvl ve nc ccscessseeceeseeeeeesnseeeeeee 2 Btateuent of the Gee ck. 3 Reasons for Denying the Writ 4 The Court of Appeals Opinion Consistently and Cor- rectly Applied This Court’s Decisions on Removal Jurisdiction Unauer the Well-Pleaded Complaint TOU ac niinccccnssvinindssnscicsaceseapcea eigen 1. The Tenth Cireuit Opinion is Correct and is Not in Conflict with Authority From Other Circuits as Alleged im the PUGS cic bo The Tenth Cireuit’s Opinion did not Reach Metropolitan Life and Reserved Those Issues for First Analysis by the State Court. 00. 3. The Tenth Cireuit’s Decision does not Reach the Issue of Mandatory Grievance Procedures Since it Correctly Holds that the Distriet Court is Without Removal Jurisdiction. pete ciseiedanide 4. The Tenth Cireuit’s Decision is Not Controlled by Lingle v. Norge Division of Magic Chef, Inc. | 5 CEES reno OE Re oO ill TABLE OF AUTHORITIES Page CASES Bechtel Power Corporation v. United Association of Journeymen and Apprentices of the Plumb- ing and Pipefitting Industry of the United States and Canada, Local 57, et al., 834 F.2d 884 (10th | APSE RISERS EG: ae cA ec | 7 Campbell v. MeLean Trucking Co., 592 F.Supp. A GS RRS Nes ene nan ea aed CRN ae 6 Caterpillar, Inc. v. Williams, 482 U.S. —, 96 L.Ed. ee Ser ct, oan (1987) oo . ‘,9 Gully v. First National Bank, 299 U.S. 109 (1936) .......... 9 Hull v. Central Transport, Inc., 628 F.Supp. 784 IER Ra at ec 6 Lingle v. Norge Division of Magie Chef, Ine., 823 F.2d 1031 (7th Cir. 1987), cert. granted, 108 EE a oe ee 8,9 Metropolitan Life Insurance Co. v. Massachusetts, 5 NS Re 6,7 Peterson v. Air Line Pilots, 759 F.2d 1161 (4th Cir. 1985), cert. dented, 474 U.S. 946 (1985) oo. Dd, 6 STATUTES 28 U.S.C. Sections 1331 and 1441 www... 20S AED 4 29 U.S.C. Section 151 (National Labor Relations Se EE passim 29 U.S.C. Section 185 (Labor-Management Rela- I i ceteiarneenias passim - 45 U.S.C. Section 151 (Railway Labor Act) www. =©=65 No. 87-1690 oO In The Supreme Court of the United States October Term, 1987 ° BECHTEL POWER CORPORATION, Petitioner, vs. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE- FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 57, JAMES K. HOUSE- KEEPER AND JAY E. TRINNAMAN, . Respondents. ray Vv RESPONSE TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT On April 6, 1988, Petitioners Bechtel Power Corpora- tion and Ronald Weatherred (hereinafter ‘‘ Petitioners’’) filed for a Writ of Certiorari to review the judgment of the United States Court of Appeals for the Tenth Circuit (hereinafter ‘‘Petition’’) in favor of United As- bo sociation of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 57, James K. Housekeeper and Jay E. Trinnaman (hereinafter ‘‘Respondents’’). This response is in oppo- sition to the issuance of that Writ. OPINIONS BELOW The opinion of the Court of Appeals for the Tenth Cireuit is reported at 834 F.2d 884 and is reproduced on pages A-1 through A-11 of Appendix A of the Petition. The opinion and order of the District Court is unreported and is reproduced on pages B-1 through B-2 of Appendix B of the Petition. JURISDICTION Respondents concede jurisdiction as invoked by the Petition. STATUTORY PROVISIONS INVOLVED All the necessary statutory provisions for deciding this Petition are contained in pages D-1 through D-3 of Appendix D of the Petition. STATEMENT OF THE CASE Petitioners, as construction managers of a large seale power plant, blacklisted workers by refusing to allow in- dependent subcontractors at the job site to hire them for thirty (30) days after they had been discharged by any other subcontractor at that site. This blacklisting was not bargained for or authorized in any labor agreement, was unrelated to any protected union activity under See- tion 8 of the National Labor Relations Act (NLRA), 29 U.S.C., Section 158, and was in apparent violation of cer- tain state of Utah constitutional and statutory provisions. Without reference to or reliance upon any rights granted under any labor agreement or protected by See- tion 8 of the NLRA, Respondents filed a complaint in state court alleging only violations of state of Utah laws prohibiting such blacklisting. See Petition Appendices D and EK. There are no allegations in the complaint which parallel the protected or prohibited activities under the NLRA. Petitioners removed the Complaint to federal court, alleging preemption under Section 301 of the Labor Man- agement Relations Act (LMRA), 29 U.S.C., Section 185, _then moved for dismissal on the grounds that (1) Respon- dents failed to exhaust controlling grievance procedures, and (2) the challenged activity was a mandatory subject of collective bargaining and, therefore, protected by Sec- tion 8 of the National Labor Relations Act. The Respondents sought remand to state court on the theory that they relied only upon causes of action ground- ed in state law, unrelated to any labor agreement and un- related to any rights protected by Section 8 of the NLRA. 4 The United States District Court for the State of Utah denied Respondents’ motion to remand, then dis- missed the complaint, apparently on the theory that Re- spondents had failed to exhaust mandatory grievance pro- cedures. The Tenth Cireuit reversed, holding that since the complaint relied only upon rights arguably granted and protected by state law which were not preempted by Sec- tion 301 of the LMRA, under the well-pleaded complaint rule, the district court lacked jurisdiction under 28 U.S.C., Sections 1331 and 1441. It then held that since Petition- ers’ claims of preemption under Sections 7 and 8 of the NLRA were raised only as a defense to the complaint, they were to be addressed in the first instance by the Utah state courts. Petitioners request a Writ of Certiorari seeking to reverse that decision. — ad REASONS FOR DENYING THE WRIT The decision of the Tenth Circuit Court of Appeals turned on the issue of whether the district court had origi- nal jurisdiction under 28 U.S.C. Sections 1331 and 1441. In ruling that the district court did not have original jur- isdiction, the Tenth Cireuit decided only two issues: (1) the complaint relied completely on state law and, there- fore, under the well-pleaded complaint rule, no removal jurisdiction existed; and, (2) as the issue of federal pre- emption under NLRA, Sections 7 and-&, is raised only as 5 a defense to the complaint it must, therefore, be addressed in the first instance by the state court. ARGUMENT THE COURT OF APPEALS OPINION CONSIS- TENTLY AND CORRECTLY APPLIED THIS COURT’S DECISIONS ON REMOVAL JURISDIC- TION UNDER THE WELL-PLEADED COMPLAINT RULE. 1. The Tenth Circuit Opinion is Correct and is Not in Conflict with Authority From Other Circuits as Al- leged in the Petition. Petitioners cite only three cases allegedly in conflict with the Tenth Cireuit’s decision, all of which are clearly aistinguishable, one of which is clearly wrongly decided. (a) Petitioners’ reliance on Peterson v. Air Line Pilots Ass’n., 759 F.2d 1161 (4th Cir. 1985), cert. denied 474 U.S. 946 (1985), as a conflicting authority is misplaced. Peterson, a former airline pilot, sought tort damages against his union as a result of conspiracy to achieve his wrongful discharge which was motivated by Peterson’s prior work as a replacement pilot during a union sponsored strike. However, Peterson’s claim arose not under Sec- tions 7 or 8 of the NLRA, or under the LMRA, but under the Railway Labor Act, 45 U.S.C., Section 151 et seq., and as the Fourth Circuit noted: ‘* ... Preemption under the RLA has followed a similar tack [to preemption under the NLRA], but a more stringent pattern of judicial differ- ence has emerged. ..’’ Jd. at pages 1168-1169. 6 Furthermore, while Peterson’s claims against his union for blacklisting were based upon his actions during a labor dispute paralleling rights protected by Section 8 of the NLRA, the blacklisting complained of in this case is not based upon any actions of the Petitioners arguably protected or prohibited by Sections 7 or 8 of the NLRA. In Campbell v. McLean Trucking Co., 592 F.Supp. 1560 (E.D.N.Y. 1984), the employee, as in Peterson, al- leged blacklisting by his employer as a direct result of Campbell’s involvement in an unauthorized work stoppage. As Campbell filed suit in a federal district court, no re- moval jurisdiction issue was presented. Furthermore, as his state blacklisting claim alleged activity clearly pro- tected by the NLRA (a matter not present here), his claim was preempted. Petitioners’ reliance on J/ull v. Central Transport, Inc., 628 F.Supp. 784 (N.D. Ind. 1986), is similarly mis- placed. In Hull, the plaintiff brought suit in state court directly alleging and relying upon a bargaining agreement, thus providing a sound basis for removal jurisdiction. Furthermore, although the court held that Hull’s black- listing allegations under Indiana state law were pre- empted, it did so summarily without any discussion of the issues and incorrectly relied upon /’*terson and Campbell, supra, as its authority for that holding. 2. The Tenth Circuit’s Opinion did not Reach Metropol- itan Life and Reserved Those Issues for First Analysis by the State Court. Petitioners argue that the Tenth Circuit failed to ana- lyze the impact of Metropolitan Life Insurance Co. v. Mas- sachusetts, 471 U.S. 724 (1985). However, the Tenth Cir- cuit’s reason for not analyzing the Metropolitan Life is- sues was that the district court and, therefore, the Tenth Cireuit, lacked jurisdiction under the well-pleaded com- plaint rule, and that since the complaint’s blacklisting claims are not preempted by Section 301 of LMRA, the issue of preemption under Sections 7 and 8 of the NLRA, raised as defenses only, cannot provide a basis for re- moval jurisdiction, citing Caterpillar, Inc. v. Williams, 482 U.S. —, 96 L.Ed.2d 318, 107 S.Ct. 2425 (1987) : “*.. The presence of a federal question, even a See- tion 301 question, in a defensive argument does not overcome the paramount policies embodied in the well- pleaded complaint rule—that the plaintiff is the mas- ter of the complaint, that a federal question must ap- pear on the face of the complaint, and that the plain- tiff may, by eschewing claims based on federal law, choose to have the cause heard in state court... . But a defendant cannot, merely by ingesting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law, ... 7d. 107 S.Ct. at 2433 (em- phasis in original) (Footnote omitted)’’ Local No. 57 v. Bechtel Power Corp., 834 F.2d at 884 (10th Cir. 1987) at 889-90, Petition Appendix A-8. Any decision by the Utah courts on the Metropolitan Life issues is subject, of course, to review. However, even though the Tenth Cireuit did not reach this issue, it is apparent that the Utah blacklisting stat- utes as they relate to the facts alleged in the complaint involve matters which are only peripherally concerned with federal labor law and which, while setting minimum stan- dards for the treatment of discharged employees which apply to all workers whether or not a collective bargain- 8 ing agreement exists, do not alter the economic balance of power between labor and management as designed by Con- gress in the framework of the NLRA. Furthermore, the blacklisting complained of in the complaint, as it is unrelated to any labor union activity, does not form a basis of an unfair labor practice as argu- ably protected or prohibited by Sections 7 and 8 of the NLRA. The complaint relies entirely on State of Utah policy as incorporated in its Constitution since 1896, that once a worker is discharged he is to be free from inter- ference when seeking new employment. Indeed, with rare exceptions, blacklisting on facts such as these has become so archaic as to be of virtually no concern to national labor policy. 3. The Tenth Circuit’s Decision does not Reach the Issue of Mandatory Grievance Procedures Since it Correct- ly Holds that the District Court is Without Removal Jurisdiction. The Petition states that the Tenth Circuit’s decision ‘‘ignores’’ the grievance procedure issue. However, as noted in the previous section, its failure to address that issue is based upon its decision that no removal jurisdic- tion exists, and that since that issue of mandatory griev- ance procedure is raised only as a defense, it does not over- come the well-pleaded complaint rule. 4. The Tenth Circuit’s Decision is Not Controlled by Lingle v. Norge Division of Magic Chef, Inc. Petitioner’s last basis for requesting certiorari is that this case raises issues ‘*‘similar’’ to those raised in Lingle v. Norge Division of Magic Chef, Inc., 823 F.2d 1031 (7th Cir. 1987), cert. granted, 108 S.Ct. 226 (1987), now before this court as No. 87-259. Lingle is concerned only with the issue of retaliatory discharge and mandatory griev- ance procedures under bargaining agreements which have +‘just eause’’ discharge provisions; and, while Lingle may refine the issue of Section 301 preemption, as may all cases involving a balancing of state regulations against the fed- eral labor policy, it is unlikely that it will affect the valid- ity of the Tenth Circuit’s opinion in this blacklisting case since its decision is consistent with the well-pleaded com- plaint rule. Caterpillar v. Williams, 482 U.S. —, 96 L.Ed. 2d 318, 107 S.Ct. 2425 (1987), Gully v. First National Bank, 299 U.S. 109 (1936). co) SUMMARY The Tenth Circuit’s decision correctly applied the well-pleaded complaint rule in determining that, on its face, the complaint relies entirely on state remedies, and, therefore, no removal jurisdiction exists; and, that any preemption issue under the NLRA is raised only as a de- fense to the complaint and must be addressed in the first instance by the state courts. Respectfully submitted, JosePH HK. Trescu Attorney for Respondents 1821 Sidewinder Drive P. O. Box 3390 Park City, Utah 84060 Telephone: (801) 649-5700 Dated: May 6, 1988 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1615%3A2. Public record. Not legal advice.