Opposition Brief — Terwilliger v. Greyhound Lines, Inc.

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No. 89-999}

Inu Che

Supreme Court of the United States

————————— oe

Mctober Cerm, 1989

—_—_-

MARION TERWILLIGER.

¥ Petitioner.

GREYHOUND LINES, INC., a foreign corporation

and JAMES SELBY, jointly and severally.

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT

RESPONSE TO PETITION FOR CERTIORARI

— AND APPENDIX —-

CUMMINGS, McC.Lorey, Davis & ACHOo, P.C.

by: RONALD G. ACHO (P-23913)

Counsel of Record

33900 Schoolcraft Road

Livonia, Michigan 48150-13592

(313) 261-2400

Counsel for Respondents

interstate Brief & Record Company. a division of North American Graphics. Inc.

1629 West Lafayette Boulevard. Detroit. MI 48216 (313) 962-6230

BEST AVAILABLE COPY

COUNTER-STATEMENT OF QUESTIONS

PRESENTED FOR REVIEW

WHETHER THE SIXTH CIRCUIT COURT OF APPEALS

CORRECTLY HELD THAT PETITIONER'S STATE LAW

CLAIM OF FRAUD AGAINST THE RESPONDENTS WAS

PREEMPTED BY § 301 OF THE LABOR-MANAGEMENT

RELATIONS ACT, 29 U.S.C. 185; WHEN SAID SUIT WAS

INEXTRICABLY INTERTWINED WITH THE COLLECTIVE

BARGAINING AGREEMENT?

[]

WHETHER PETITIONER’S CAUSE OF ACTION WAS

BARRED BY HIS FAILURE TO INITIATE AND EXHAUST

ALL AVAILABLE REMEDIES PURSUANT TO THE TERMS

OF THE COLLECTIVE BARGAINING AGREEMENT?

111

TABLE OF CONTENTS

PAGE

COUNTER-STATEMENT OF QUESTIONS

ee REE? BOP PREVIEW 2... we cee ce eee 1

So Se SS oye 816 y | 3 lV

COUNTER-STATEMENT OF THE CASE........ 2

APPVEPPAPOS GO APRS 2 ww ee ee eee 9

REASONS FOR DENYING THE WRIT:

I

I.

THE SIXTH CIRCUIT COURT OF APPEALS

CORRECTLY HELD THAT PETITIONER’S

STATE LAW CLAIM OF FRAUD AGAINST THE

RESPONDENTS WAS PREEMPTED BY § 301 OF

THE LABOR-MANAGEMENT RELATIONS ACT,

29 U.S.C. 185; WHEN SAID SUIT WAS INEX-

TRICABLY INTERTWINED WITH THE COL-

LECTIVE BARGAINING AGREEMENT.

PETITIONER’S CAUSE OF ACTION WAS

BARRED BY HIS FAILURE TO INITIATE AND

EXHAUST ALL AVAILABLE REMEDIES PUR-

SUANT TO THE TERMS OF THE COLLECTIVE

BARGAINING AGREEMENT. Peas eth as

eae Tale, oo dt c'4 ky os Whee eee es

ED cee ees ev cee senes

APPENDIX:

March 14, 1971 Bulletin from Safety Department,

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TABLE OF AUTHORITIES

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PAGE(S}

Lingle v. Norge Division of Magic Chef, 486 U.S.

399. 108 S.Ct. 1877; 100 L.Ed.2d 519 (1988) ... 9

10, 11, 12, 13

Moore v. General Motors Corp., 739 F.2d 311 (6th

Cie TOGA) Ck Ou Sree ee eee eee eee 13, 24

NLRB v. Industrial Union of Marine & Ship-

building Workers of America, AFL-CIO, 391

U.S. 418; 88 S.Ct. 1717; 20 L.Ed.2d 706 (1968) 28

Republic Steel Corp. v. Maddox, 379 U.S. 650; 85

S.Ct. 614; 13 L.Ed.2d 580 (1965)...... 23, 24, 28

Stallcop v. Kaiser Foundation Hosp., 820 F.2d

1044 (9th Cir. 1987)... . 2.2 eee ees ceees Aly an

Strachan v. Union Oil Co., 768 F.2d 703 (5th Cir.

1983)... ca wea ke eens 6 ee eels: oe eee ee 14

United Paper-Works v. Georgia Pacific, 798 F.2d

172 (6th Cin, 1906) . oc cs ee ee seca eeeeees 24

United Parcel Service, Inc. v. Mitchell, 451 US.

56; 102 S.Ct. 1559; 67 L.Ed.2d 732 (1981) .... 21

U/nited Steelworkers of America v. American

Manufacturing Co., 362 U.S. 564; 80 S.G4.

1343; 4 L.Ed.2d 1409 (TOGOY nc ce kereees 26

\JInited Steelworkers of America v. Enterprise

Wheel & Car Corp., 363 U.S. 593; 80 S.Ct.

1358: 4 L.Ed.2d 1454 (1960) ............--- 26

United Steelworkers of America v. Warrior &

Gulf Navigation Co., 363 U.S. 574; 80 S.Ct.

1347; 4 L.Ed.2d 1409 (1960) ..........--.. 25, 26

Vaca v. Sipes, 386 U.S. 171; 87 S.Ct. 903; 17

L.Ed.2d 842 (1967) ... 2... cceeeenncces 23, 28

Wells v. General Motors Corp., 881 F.2d 166 (5th

Cir 1909) 2. o.oo. ccu cs ddve ses sssumeee 18, 20

Il. STATUTES:

29 U.S.C. § 159

5

29 U.S.C

4/4

29 U.S.C

47

F

Hl. COURT RULE:

U.S. Sup. Ct

No. 89-999

In Che

Supreme Court of the United States

Mctober Cerm, 1989

MARION TERWILLIGER,

- Petitioner.

GREYHOUND LINES, INC., a foreign corporation

and JAMES SELBY, jointly and severally,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT

RESPONSE TO PETITION FOR CERTIORARI

Respondents. GREYHOUND LINES, INC., and JAMES

SELBY, request that this Honorable Court deny Peti-

tioner’s, MARION TERWILLIGER, Request for a Writ of

Certiorari to review the Opinion of the Sixth Circuit

Court of Appeals on August 10, 1989, which reversed a

jury verdict entered in this matter; tinding the Peti-

tioner’s state-law claim was preempted by § 301 of the

Labor-Management Relations Act, 29 U.S.C. § 185; and

on the basis of Petitioner’s failure to exhaust the

remedies available in the Collective Bargaining Agree-

ment. The Sixth Circuit did not rule on the other seven

issues raised by Respondents, since the two rulings

made by the Court had disposed of this case. The

Respondents herein received Petitioner’s Petition for

Writ of Certiorari on December 27, 1989.

COUNTER-STATEMENT OF THE CASE

Petitioner's Statement ot the Case contains irrele-

vant, immaterial and, more importantly, unsupported

factual assertions. It omits signiticant relevant material

established at trial. In essence, it is a misrepresentation

to this Honorable Court

Petitioner claims GREYHOUND altered documents

withheld intormation, and made misrepresentations

concerning the Petitioner's medical condition. The

testimony and documentary evidence produced at trial

clearly established there was no evidence presented

that GREYHOUND or its employees altered any docu

ments. Nor was there any evidence that GREYHOUND

intentionally withheld; nor was there a requirement to

‘turnish the second medical report of Dr. Kantor; out-

side the contractual provisions ot Section N, Article 2\m)

Petitioner has deliberately misstated tacts apparently to

mislead this Court.

Petitioner was hired by GREYHOUND on February 12

1943, as a bus driver transporting passengers, baggage

and package express in interstate commerce. He was a

member of Local 1301 of the Amalgamated Transit

Union (hereinatter referred to as “Union”, and was

subject to the provisions of a Collective Bargaining

Agreement between the National Counsel Greyhound

Divisions Amalgamated Transit Union AFL-CIO CLC

and GREYHOUND.

In 1959 Plaintiff went on medical leave atter he

experienced faintness, blurred vision and chest pressure

while driving a GREYHOUND bus from Bay City to

Detroit. Petitioner was hospitalized at Bay City General

Hospital, for nine days. Three doctors diagnosed Plain-

tiff as having (1) angina pectoris; (2) coronary artery

atherosclerosis; and (3) “questionable myocardial infarc-

ad

tion.” An electrocardiographic study revealed a coro-

nary artery sclerosis with angina pectoris. He was

re-hospitalized and diagnosed as having Wolf-Parkinson-

White Syndrome and Dr. Rueter stated that to continue

to allow Petitioner to drive “could only be interpreted

as an act of negligence.”

Petitioner was reluctant to accept this diagnosis and

disqualification decision and when Dr. Rueter would

not discharge him from the hospital, he discharged

himself. He was on medical leave for 18 months until

1960 and returned to work after submitting a medical

report from his physician and passing a medical exam

requested by GREYHOUND. He was examined by eight

doctors regarding his heart problems during the 18

months he was otf work. Despite being on a medical

leave of absence trom GREYHOUND, fetitioner worked

tor a treight hauling company but did not reapply to

GREYHOUND tor employment prior to August, 1960.

Petitioner knew GREYHOUND’s” requirements

exceeded those of the Department ot Transportation

hereinafter reterred to as “DOT”) and that GREY

HOUND would not accept only a DOT physical as

qualitying him to drive a bus. In 1966, he experienced a

burning sensation in his chest, after lifting dies

weighing 75-100 pounds, as part of his bus driving job.

He began treatment with Dr. Kondomerkos and was re-

hospitalized tor approximately three weeks for heart

trouble. On July 15, 1966, Petitioner was disqualified by

his doctor from his employment, as a bus driver; when

he was diagnosed as having coronary artery disease. He

then applied tor, and was granted, disability pension

status, pursuant to his rights under the Collective Bar-

gaining Agreement. Petitioner remained on disability

status from 1966 until his normal retirement age, on

December 1, 1983, and continues to collect a pension.

4

He also collects, since 1968, a V.A. pension for his

psychiatric disability.

Petitioner was disqualified from working for GREY-

HOUND trom 1966 through 1971 by his own personal

doctor, Dr. Kondomerkos,; because of the abnormal!

readings on the Petitioner's EKG’s. During these five

years Petitioner did not seek reinstatement to drive for

GREYHOUND. Other than Dr. Kondomerkos’ report in

1971, Petitioner never supplied Respondents with any

information concerning other medical records and

examinations made between 1959 and 1971. Moreover,

Petitioner was given a physical examination in Nov-

ember of 1970, by a doctor tor Shortway Bus Lines and

did not supply that information to GREYHOUND.

Although Petitioner drove a transit run for Shortway, he

telt he would have a hard time returning to work over-

the-road tor GREYHOUND because he assumed

GREYHOUND would want more EKG’.

While he was being treated for heart problems, he

was also going to the V.A. Hospital regularly for psychi-

atric care. In 1967 Petitioner was placed on disability

status by the VA. GREYHOUND was never informed of

this disability determination.

All of the EKG’s done by his treating physician, Dr

Kondemerkos, from 1966-1971, were abnormal. Peti-

tioner originally testified he had no chest pains from

1966 until the present, but, he later admitted that was

not true. In 1972, the VA. Hospital records revealed

Petitioner had angina pectoris attacks and was hos.

pitalized trom April 30, 1972 to May 6, 1972. At that time

he was diagnosed, by Dr. Dryer, as having myocardial

ischemia and was hospitalized at Annapolis Hospital

Unknown to GREYHOUND, January 4, 1978 medical

records revealed he, in tact, had chest pains over the

past eight years, trom 1970 through 1978. The medica!

5

reports reflected Petitioner had medical problems “con-

sistent with aortic valve disease.” He never disclosed

any of this information to GREYHOUND.

After he engaged in a heated outburst at Dr. Konde-

merkos’ office, accusing the doctor of “milking the

insurance company”; Petitioner then received a letter

from the doctor saying he could return to work. Dr.

Kondemerkos’ letter of April 13, 1971 did not contain

the required information specified in the Safety Bul-

letin described below. Subsequent to April 13, 1971, he

requested reinstatement to his employment with GREY-

HOUND, as a bus driver.

On March 14, 1971, GREYHOUND ’s Satety Depart-

ment re-issued a Bulletin specifying the conditions tor

an employee to return to work after disqualification

based on a heart condition. (Appendix, p. A-1, infra).

SELBY’s conduct was in accord with the Bulletin.

At the time Petitioner requested reinstatement,

|. Underwood, GREYHOUND ’s Assistant Regional Man-

ager, sent him to Maybury Grand Clinic. On July 28,

1971, Petitioner was examined by Dr. Kantor, an intern-

ist at the Clinic. After the examination, Petitioner had

not received a clearance to return to work.

Petitioner saw Dr. Kantor’s report when the doctor

gave it to him following the examination. The report

contained two items of disqualification, showing the

DOT regulation numbers. However, Petitioner was

orally told by Dr Kantor that the only reason he was

disqualified was because of his vision. The conversa-

tion between Dr. Kantor and Petitioner was prior to any

knowledge by GREYHOUND of Dr. Kantor’s report.

On September 20, 1971, Petitioner wrote a letter to

the Union “to lay a foundation tor {his| case.” He stated

he talked to Dr. Kantor and saw the results of the

6

physical. He wrote the letter in case the matter was

pursued with GREYHOUND.

His letter to the Union contained a statement that he

saw the results of the physical, and was turned down

only for his glasses. Petitioner wrote that he knew he

had passed Dr. Kantor’s physical and should have been

back to work on July 28, 1971. His letter further stated

“I firmly believe that intentionally or unintentionally

there has been an error in judgment or possibly a mis-

interpretation of the contract.” On September 20, 1971,

he advised the Union he believed GREYHOUND was

acting improperly. Petitioner had filed grievances in the

past and knew how the grievance procedure worked

yet he never pursued a grievance when his reinstate-

ment request was denied.

Upon Respondent SELBY’s return from vacation, in

August, 1971, he noticed there were two reasons why

Petitioner had not been certified to return to work: one

tor glasses and the other for a heart condition. However.

the DOT numbersfor the heart condition was trans-

posed and SELBY requested clarification from Dr

Kantor. The Union also recognized the DOT number

was incorrect and wrote a letter to Dr. Kantor asking

tor clarification; but never pursued their inquiry of Dr.

Kantor any further.

Dr. Kantor sent a second report to GREYHOUND

clarifying that he had disqualified Petitioner from

returning to work only due to Petitioner's vision, but

that Petitioner could be disqualified based on GREY

HOUND’s policy concerning heart conditions. On

August 26, 1971, SELBY, who was located in Detroit,

had no authority to reinstate Petitioner, and sought

direction from a supervisor, JORGENSEN, in Chicago

JORGENSEN told SELBY to have Petitioner examined by

a heart specialist due to Petitioner's past history ot

,

heart troaible. As mentioned earlier, in 1959, GREY-

HOUND had been informed by Dr. Rueter that it would

be negligent for GREYHOUND to continue to allow

Petitioner to operate a bus due to Petitioner’s heart

condition. Dr. Rueter had also advised GREYHOUND

that Petitioner was prone to further attacks. Moreover,

based on the Safety Bulletin 3-71, SELBY determined

Petitioner should not have been sent to Dr. Kantor,

an internist, but should have been sent to a heart

specialist.

On August 24, 1971, the Union asked JORGENSEN to

send Petitioner to a third doctor for the purpose of

determining Petitioner’s eligibility to return to work.

Said request was made pursuant to provisions for medi-

cal arbitration in the Collective Bargaining Agreement.

On August 30, 1971, JORGENSEN confirmed that Peti-

tioner would be sent tor a physical examination, by a

cardiologist at Henry Ford Hospital, as requested by the

Union. Thereafter, SELBY received instructions from

W. D. Weiss, Director of Safety for GREYHOUND, to have

Petitioner examined by Dr. Breneman, a Cardiologist, at

Henry Ford Hospital. On September 24, 1971, Petitioner

was examined by Dr. Breneman.

On September 30, 1971, Dr. Breneman issued his

report in which he advised the parties that Plaintiff had

“significant coronary artery disease” and “should not

be employed in the operation of a commercial or pas-

senger-transport vehicle.” Based on the report of the

heart specialist, Petitioner was not reinstated to work

at GREYHOUND. The Union did not question Dr

Breneman’s integrity or qualifications. Petitioner

acknowledged GREYHOUND wanted to be sure that

everything was alright, and that he was being sent to a

heart specialist “to be sure.” He admitted he did not

pass the physical examination by the heart specialist.

8

Petitioner alleged the EKG done at Henry Ford Hos-

pital “was screwed up” by the technician. However,

even though Petitioner had taken 15 prior EKG’s he did

not tell the examining heart specialist or GREYHOUND

about his concern. Petitioner believed the EKG was

done incorrectly because he had keys, change, and

metal in his possession. Despite his reservations, Peti-

tioner did not remove the metal. However, Petitioner

admits he did not know whether the EKG was done

incorrectly and no evidence was presented showing it

was done incorrectly. Either on the same day or the

next day, Petitioner wrote a second letter to the Union

regarding his examination at Henry Ford Hospital. He

stated he knew, on July 28, 1971, that he had passed the

examination with Dr. Kantor except for his right eye.

Petitioner in his second letter to the Union, stated he

had more information “than I care to divulge and . .

I'll do something about it.” Petitioner never visited the

Union oftice on this matter.

Instead of pursuing his grievance and arbitration

remedies as provided in his Collective Bargaining Agree-

ment, in 1971, he waited two years, until the Fall of

1973, betore hiring attorney Richard Ashare to initiate a

lawsuit against GREYHOUND and the Union. Petitioner

testified he agreed to wait several years before filing

sult, so his compensatory damages would increase

Seven years later, in 1980, Ashare informed him that

the statute of limitations had run on his claims against

GREYHOUND and the Union; and the file had been

destroyed. He then filed a legal malpractice suit against

Ashare and settled his claim in July, 1985.

After Petitioner was disqualified by GREYHOUND in

1971 trom returning to work, he could have requested

another doctor and provide GREYHOUND with addi-

tional information, and the procedure would have

9 ,

started all over again. This was provided for in the

Collective Bargaining Agreement, under Article 12.

Plaintiff made no such request from 1971 through 1981.

On January 31, 1981, Petitioner again sought reinstate-

ment; but GREYHOUND never decided the issue

because he refused to provide GREYHOUND with

updated medical reports on his current medical condi-

tion. When Petitioner requested reinstatement in 1981,

he never informed GREYHOUND that he experienced

heart problems after 1971. Finally, on November 25,

1981, he underwent a heart catherization which re-

vealed a 61% obstruction to the heart's right coronary

artery. Petitioner filed suit fourteen (14) years after he

was denied reinstatement in 1971.

Many facts set forth in the Petitioner's Petition for

Writ of Certiorari are not supported by the undisputed

testimony and documentary evidence presented at trial.

However, the Counter-Statement of Facts set forth

herein is completely supported by the undisputed testi-

mony and documentary evidence produced at trial and

was taken from the Brief to the Sixth Circuit.

SUMMARY OF ARGUMENT

Throughout the course of this litigation, Petitioner

has sought to enforce employment rights created solely

by his Collective Bargaining Agreement with the

Respondent. Further, any relationship between the

Petitioner, as an employee, and the Respondents, as an

employer or representative of same, clearly were solely

created by, and exclusively stem from, the provisions of

the Collective Bargaining Agreement.

In Lingle v. Norge Division of Magic Chef, 486 U.S.

399. 108 S.Ct. 1877; 100 L.Ed.2d 519 (1988), this Honor-

able Court clearly stated state-law actions inextricably

10

intertwined with the provisions of a Collective Bar-

gaining Agreement are preempted by § 301 of the Labor-

Management Relations Act.

The Sixth Circuit is not in conflict, but in complete

accord with Lingle. Petitioner has presented nothing

pursuant to U.S. Sup. Ct. Rule 17 to warrant the

granting of said Petition

REASONS FOR DENYING THE WRIT

THE SIXTH CIRCUIT COURT OF APPEALS CORRECTLY

HELD THAT PETITIONER’S STATE LAW CLAIM OF

FRAUD AGAINST THE RESPONDENTS WAS PREEMPTED

BY § 301 OF THE LABOR-MANAGEMENT RELATIONS

ACT, 29 U.S.C. 185; WHEN SAID SUIT WAS INEXTRIC-

ABLY INTERTWINED WITH THE COLLECTIVE BAR-

GAINING AGREEMENT.

Section 30l(a) of the Labor-Management Relations

Act of 1947, 29 U.S.C. § 185(a) provides

Suits for violations of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this Act, or between any such labor

organizations, may be brought in any District

Court of the United States having jurisdiction ot

the parties, without respect to the amount in

controversy or without regard to the citizenship

of the parties

In Lingle v. Norge Division of Magic Chief, In«

supra, this Honorable Court unanimously held that an

application of state law is pre-empted by § 301 of the

Labor-Management Relations Act ot 1947; if such appl

ll

cation requires the interpretation of a collective-

bargaining agreement. In so holding, the Court stated:

Today’s decision should make clear that interpre-

tation of collective-bargaining agreements

remains firmly in the arbitral realm: judges can

determine questions of state law involving labor-

management relations only if such questions do

not require construing collective-bargaining

agreements. (Emphasis added).

Petitioner contends the Sixth Circuit erred in holding

Petitioner’s fraud claim was preempted. Petitioner con-

tends GREYHOUND fraudulently altered and withheld

certain medical records relating to Petitioner’s heart. It

cannot be emphasized strongly enough that there is

absolutely no trial transcript testimony and/or docu-

mentation to support this erroneous statement.

Petitioner contends that the Sixth Circuit failed to

recognize that any grievance filed by the Petitioner in

1971 would have Béen decided pursuant to fraudulent

records; and any grievance decided in 1985, after the

alleged fraud was discovered, would not have been able

to compensate him for the full range of injuries he

suffered. Petitioner contends the alleged fraud cannot

be remedied pursuant to a grievance procedure. Peti-

tioner’s assertions are completely unsupported by the

record and have no basis in law.

In the instant case, Petitioner sought reinstatement

to his employment as a bus driver with GREYHOUND

pursuant to the terms of a Collective Bargaining Agree-

ment. Here, contrary to the facts in Lingle, Petitioner

sought to enforce rights that were only created by the

Collective Bargaining Agreement. Further, Petitioner

contends that GREYHOUND failed to live up to its

duties under the Collective Bargaining Agreement when

12

it allegedly committed fraud through an alleged failure

to disclose certain medical documents; forcing the

Petitioner to undergo a third examination. Said exami-

nation was provided for under the Collective Bargaining

Agreement. Further said examination was requested by

the Petitioner’s Union. These two factors in and of

themselves establish that the provisions of the Collec-

tive Bargaining Agreement, governing the Petitioner's

right to reinstatement, would have to be interpreted,

and therefore, were inextricably intertwined with the

Collective Bargaining Agreement. Clearly, § 301 was

intended to preempt such disputes arising between the

employer and employee governed by a collective gov-

erning agreement. Further, Petitioner’s counsel

admitted at the Sixth Circuit that this was a § 301

action.

Unlike Lingle, the rights which the Petitioner

believes he has been denied stem from the Collective

Bargaining Agreement itself. In Lingle, plaintiff

attempted to assert and enforce rights created purely by

State statute which prohibited retaliatory discharge

when a person filed for and collected worker's compen-

sation. In Lingle, this was a non-negotiable state statu-

tury right separate and apart from any rights and/or

duties the plaintiff may have had in his collective bar-

gaining agreement. In the case at hand, Petitioner's

right to reinstatement, as well as any relationship

between the Petitioner and the Respondents, arose

solely trom the terms and provisions of the Collective

Bargaining Agreement

In fact, the holding in Lingle clearly recognized such

a Situation when it stated

Petitioner points to the fact that the Illinois

right to be tree from retaliatory discharge is non-

negotiable and applies to unionized and non-

13

unionized workers alike. While it may be true

that most state laws that are not pre-empted by

section 301 will grant nonnegotiable rights that

are shared by all state workers, we note that

neither condition insures nonpre-emption. I/t is

conceivable that a State could create a remedy

that, although nonnegotiable, nonetheless

turned on the interpretation of a collective-

bargaining agreement for its application. Such a

remedy would be pre-empted by section 301.

Similarly, if a law applied to all state workers

but required, at least in certain instances, col-

lective-bargaining agreement interpretation, the

application of the law in those instances would

be pre-empted. |Emphasis added).

Thus, it is clear that Petitioner’s state-law fraud

claim was preempted by § 301; when in fact, the Court

was called upon to interpret provisions of the Collec-

tive Bargaining Agreement. In fact, the jury was

instructed by the Court, to interpret the Collective

Bargaining Agreement relative to whether the Plaintiff

was obligated to file a grievance. For the Court to have

given such an instruction clearly establishes that inter-

pretation of the Collective Bargaining Agreement was

inextricably intertwined with the Petitioner’s state-law

fraud claim.

Unquestionably, where an employee's claim against

either the employer or its agent, or both involves provi-

sions of the Collective Bargaining Agreement, with

respect to such matters as seniority rights, transfer,

medical disqualifications and employment physicals,

or other terms and conditions of employment, the

action is within the ambit of § 301 and not state law.

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202; 105 S.Ct.

1904; 85 L.Ed.2d 206 (1985); Moore v. General Motors

-

15

In Bale v. General Telephone of California, 795 F2d

775 (9th Cir. 1986), the Court held that former em-

ployees’ state-law fraud and negligent misrepresentation

claims against the employer were preempted by § 301.

where adjudication of the tort claims would require

reference to, and interpretation of the labor contract. In

the instant action, Petitioner’s claims are similar to

those in Bale.

Petitioner contends the Sixth Circuit decision in this

matter conflicts with Lingle and decisions from the

Third and Fifth Circuits. In support of this contention,

Petitioner relies upon the case of Berda v. CBS, Inc.,

881 F.2d 29 (3rd Cir. 1989). In Berda, the Court was

faced with the question:

Whether state contract and tort claims for

monetary relief brought by a bargaining unit

employee against his employer based upon

alleged misrepresentations of job security, made

before the employee became a member of the

bargaining unit which confer additional rights

to those afforded by the collective bargaining

agreement, are preempted by section 301 of the

Labor Management Relations Act, ... (Empha-

sis added).

The Berda plaintift brought suit against his former

employer asserting two ccatract claims; breach of an

individual employment contract and promissory estop-

pel, and two tort claims of fraud and negligent misrep-

resentation. All of the claims were founded upon

Pennsylvania law and the plaintiff sought only

monetary relief. The defendant employer contended the

plaintitts’ claims were preempted by § 301. The district

court held the plaintiffs’ claims were preempted by

§ 301; and plaintitts could not maintain suit under 29

USC § 185 because plaintiffs had not filed their claim

i

16

within the six-month statute of limitations period set

forth in DelCostello v. Teamsters, 462 U.S. 151; 103

S.Ct. 2281; 76 L.Ed.2d 476 (1983).

The Third Circuit Court of Appeals recognized the

holding set forth in Allis-Chalmers, supra, stating § 301

preemption extended not only to contract claims but to

claims sounding in tort. Quoting Allis-Chalmers; the

Third Circuit stated:

When resolution of a state-iaw claim is substan-

tially dependent upon analysis of the terms of

an agreement made between the parties in a

labor contract, the claim must either be treated

as a 301 claim ... or dismissed as pre-empted by

federal labor-contract law. Allis-Chalmers, at

202.

Recognizing Lingle, the Third Circuit found the state

tort claims, asserted by the plaintiff in Berda, were

substantially different and independent from any rights

created by the Collective Bargaining Agreement. Peti

tioner’s claims herein are clearly distinguishable. In

Berda, the plaintiff attempted to seek compensation for

pre-employment representations made to him by the

defendant employer; asserting resolution of those

claims did not require interpretation of the plaintiff's

post-employment collective bargaining agreement

Relying on similar facts set forth in Caterpillar, Inc. vy

Williams, 482 U.S. 386; 107 S.Ct. 2425; 96 L.Ed.2d 318

(1987), the Third Circuit stated

In Caterpillar, the Supreme Court held

claims ot pre-existing employment contracts

were not preempted by Section 30]

The Caterpillar decision stated “individual emp!

ment contracts are not inevitably superceded by an:

subsequent collective agreement covering an individua

peer nprcieeenonenaeaeaie eaaaeaeeanrte a ee

enc

17

employee, and claims based upon them may arise under

state law.” Caterpillar, 107 S.Ct. at 2431. Caterpillar

explained that the employer's basic error in contending

3 301 preemption arose due to the defendant employer's

tailure to recognize that an employee, covered by a

collective-bargaining agreement, is permitted to assert

rrah?

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18

trial court, contrary to law, determined GREYHOUND

was contractually required to furnish the Union with a

copy of Dr. Kantor’s second medical report. Based on

the labor contract, GREYHOUND asserted the language

of the labor contract did not obligate it to furnish a

copy of the report unless the report was requested by

the Union. Clearly, this issue alone required interpreta-

tion of the labor contract language. The pertinent provi-

sion being stated in Section N, Article 2(m):

The company will permit an employee or his

representative, upon request, to either copy or

check the service record and medical examina-

tion reports. Upon request, the Company will

furnish the Union copies of said service record

and medical examination reports, where the

Company has a copying machine readily avail-

able and such record are not voluminous. (Em-

phasis added).

Interpretation of the above-referenced provision was

not a matter for the Court, or the jury, but for the griev-

ance procedure or ultimately an arbitrator pursuant to

the Collective Bargaining Agreement. Failure to furnish

this report was the basis of Petitioner’s state fraud

claim.

Petitioner has argued that the Sixth Circuit Court of

Appeals’ decision herein conflicts with the holding set

forth in Wells v. General Motors Corp., 881 F.2d 166 (5th

Cir. 1989), contending that the analysis and facts set

forth in Wells is similar to the instant matter.

In Wells, 32 plaintiffs brought suit in federal district

court alleging that the defendant employer had fraudu-

lently misrepresented to the employees their future

rights concerning rehire when said employees opted to

accept severance pay pursuant to a contract negotiated

19

between the employer and the employees’ union in the

face of lay-offs at one of the employer’s plants. When

said plaintiffs sought to apply for new positions

opening up at the defendant employer’s plant, said

employees were allegedly informed by management

that because they had chosen the severance pay plan

they were ineligible for rehire.

As a defense to the plaintiffs’ suit, the defendant

employer raised two defenses. First, the employer con-

tended that plaintiffs’ claims should be dismissed for

lack of subject matter jurisdiction; when same was

properly vested with the National Labor Relations

Board. Alternatively, defendant employer asserted plain-

tiffs’ claims were preempted by § 301 of the Labor-

Management Relations Act and § 514(a) of the Employee

Retirement Income Security Act of 1974.

On appeal, the Fifth Circuit heid the district court,

not the NLRB, had subject matter jurisdiction over the

plaintiffs’ suit. In addressing the defendant’s preemption

argument, the Fifth Circuit held the defendant employ-

er’s argument, with respect to preemption, was flawed

in two respects. First, § 301 preemption applied when

resolution of the particular dispute is “substantially

dependent upon analysis of the terms” of the collective

bargaining agreement; not whenever a collectively-

bargained agreement becomes relevant to a dispute.

Secondly, the Fifth Circuit found the defendant employ-

er’s argument rested upon an unsound premise: namely,

that the plaintiffs’ claims the employer’s representa-

tives fraudulently misrepresented what was in the

contract. Instead, the Fifth Circuit held the plaintiffs

were asserting that the defendant employer had fraudu-

lently induced individual employees to opt for the

severance pay plan by making an extraneous promise

concerning their future employment eligibility. Said

20

plaintiffs did not claim that the promise had anything

to do with the contents of the bargained for severance

pay plan.

In ultimately holding the plaintiffs’ claims in Wells

were not preempted by § 301, the Court stated:

We recognize, as have other Circuits, that the

existence of an agreement nevertheless may

invoke section 301 preemption where a court

determines that the agreement contains provi-

sions that might reasonably be construed as gov-

erning the disputed matter. The agreement

might, for example, contain provisions that are

contrary to the representations made, or might

reserve the particular issue for future collective

bargaining or preclude such inducements on the

part of the employer representatives. Under such

circumstances, interpretation of the collective

bargaining agreement, in the sense of construc-

tion and application of these provisions, would

be required, and federal law would properly gov-

ern. But this is not the case here.

In the case at hand, it is clear that various provisions of

the Collective Bargaining Agreement had to be inter-

preted for a resolution of the dispute between the Peti-

tioner and the Respondents herein. In the case at hand,

Petitioner sought to enforce reinstatement rights which

were afforded to him only by the terms and conditions

of the Collective Bargaining Agreement. There was no

extraneous promise, as in Wells. Further, the Collective

Bargaining Agreement established the procedures,

rights, and duties of the parties; when Petitioner sought

to invoke his reinstatement rights under the Collective

Bargaining Agreement. The jury and Jater the trial

court, erroneously determined that the Respondents

had a duty, pursuant to the Collective Bargaining Agree-

21

ment, to provide the Petitioner’s Union a copy of the

second Dr. Kantor report. A provision of the Collective

Bargaining Agreement specifically stated an employee's

or Union's right to see or copy medical examinations,

among other things, from an employee’s employment

file, stemmed from provisions contained in the Collec-

tive Bargaining Agreement. Lastly, the trial court

erroneously submitted to the jury, a question of law,

with respect to whether or not the Petitioner was obli-

gated to pursue his contractual grievance and arbitra-

tion remedies. This specific question was set forth on a

special verdict form submitted to the jury and clearly

evidences that the jury was required to interpret provi-

sions of the Collective Bargaining Agreement, as well

as determine, as a matter of law, whether the Petitioner

was required to follow the remedial provisions set forth

in said Agreement.

Thus, it is clear that the claims asserted herein by

the Petitioner were inextricably intertwined with inter-

pretation of the Collective Bargaining Agreement. In

other words, Petitioner’s state law fraud claims were

“substantially dependent upon interpretation of the

Collective Bargaining Agreement,” and therefore were

preempted by § 301. The Sixth Circuit correctly ruled

that the trial court committed reversible error in sub-

mitting this matter to the jury for its consideration. As

a matter of law, Defendants were entitled to a dismissal

of Petitioner's state law claims as same were preempted

by § 301 and were not filed within the six-month stat-

ute of limitations. DelCastello v. International Brother-

hood of Teamsters, supra; United Parcel Service, Inc. v.

Mitchell, 451 U.S. 56; 102 S.Ct. 1559; 67 L.Ed.2d 732

(1981); Stallcop v. Kaiser Foundation Hosp., 820 F.2d

1044 (9th Cir. 1987).

22

In Stallcop v. Kaiser Foundation Hosp., supra, plain-

tiff brought a cause of action for fraud based upon rep-

resentations made by his employer in connection with

a reinstatement agreement. The court held, the fraud

action depended upon an interpretation of the collec-

tive bargaining agreement, and was preempted by § 301,

citing Bale v. General Telephone of California, supra at

779-80, and Fristoe v. Reynolds Metals Co., 615 F2d

1209, 1211-12 (9th Cir. 1980). The court further held

that the six month statute of limitation under Del-

Costello applied to time-bar plaintiff’s claim. Peti-

tioner’s case here is on “all fours” with the decision in

Stallcop.

In essence, Petitioner is arguing that GREYHOUND

acted in bad faith and violated the provisions of the

Collective Bargaining Agreement; thereby failing to

abide by the terms of the Agreement when it nego-

tiated with the Union for an examination by a third

physician. In resolving this matter on appeal, the Sixth

Circuit addressed the Petitioner’s contention that the

second physical report of Dr. Kantor was intentionally

withheld by GREYHOUND representatives. According to

Petitioner, but for such withholding, the examination

by the third doctor, Dr. Breneman, would not have

occurred.

in reviewing these arguments, the Sixth Circuit

viewed the facts in a light most favorable to the Peti-

tioner and assumed Dr. Kantor’s second physical report

was intentionally withheld by GREYHOUND. The Court

found evidence to support the disqualifications of the

Petitioner, GREYHOUND ’s higher internal standards;

finding, in fact, the two physicians had disagreed as to

Petitioners ability to return to work. The Court stated

any analysis regarding GREYHOUND's internal stan-

dards was “uniquely a contractual question ... to be

23

resolved in the first instance by the arbitration process

specified in the agreement. (Petitioner’s Appendix F,

App. 28 fn. 7).

Thus, the rights Petitioner sought to vindicate in the

District Court arose solely pursuant to the terms of the

Collective Bargaining Agreement, as the Sixth Circuit

correctly found. The Sixth Circuit found the rights

sought to be enforced by the Petitioner, with respect to

his reinstatement to employment, were created by the

Collective Bargaining Agreement and provided the only

basis for the relationship between the Petitioner and

the Respondent herein as employee and employer.

Thus, it is clear that resolution of the Petitioner’s state-

law claim directly required interpretation of the terms

of the Collective Bargaining Agreement itself. The

rights sought to be enforced and the relationship

between the parties were created not by state law, but

by the Collective Bargaining Agreement.

II.

PETITIONER’S CAUSE OF ACTION WAS BARRED BY HIS

FAILURE TO INITIATE AND EXHAUST ALL AVAILABLE

REMEDIES PURSUANT TO THE TERMS OF THE COLLEC-

TIVE BARGAINING AGREEMENT.

In Vaca v. Sipes, 386 U.S. 171; 87 S.Ct. 903; 17 L.Ed.

842 (1967), this Honorable Court stated Congress

clearly signaled its intent that bargained-for grievance

procedures should be enforced. Section 302(d) of the

Labor-Management Relations Act states that “final

adjustment by a method agreed upon by the parties is

declared to be the desirable method for settlement of

grievance disputes.” 61 Stat. 153, 29 U.S.C. § 173(d)

(June 23, 1947). In Republic Steel Corp. v. Maddox, 379

U.S. 650; 85 S.Ct. 614; 13 L.Ed.2d 580 (1965), this Hon-

orable Court held before a § 301 action can be initiated,

24

an employee must attempt to use the procedures avail-

able under the collective bargaining agreement. These

holdings were reaffirmed in Clayton v. International

Union, United Automobile, Aerospace & Agricultural

Workers of America, 451 U.S. 679; 101 S.Ct. 2088; 68

L.Ed.2d 538 (1981), where this Honorable Court held

that Republic Steel was intended to protect the collec-

tive bargaining process, encouraging private rather than

judicial resolution af disputes involving interpretation

or application of a collective bargaining agreement.

The provisions of the Collective Bargaining Agree-

ment were agreed to by the Union, Petitioner’s exclu-

sive representative, under §§ 9 and 301, 29 U.S.C. 159

and 185, as the terms and conditions of his employ-

ment. They must be afforded their intended affect to

limit Petitioner’s enforcement of rights arising from, or

within the ambit of the Collective Bargaining Agree-

ment. Even the trial court acknowledged that “obvi-

ously, if he should have gone to arbitration, the statute

has run, you don’t have to argue that.”

In the instant case, it was stipulated by Petitioner’s

counsel and admitted by the Petitioner himself, that he

did not file a grievance to resolve the dispute as to his

qualifications to return to work. Although Petitioner

wrote a letter to the Union stating he was submitting

to the physical exam, by Dr. Breneman at Henry Ford

Hospital, under protest, the letter was not enough to

evidence compliance with the grievance procedures.

Moore v. General Motors Corp., supra; Republic Steel v.

Maddox, supra; United Paper-Works v. Georgia Pacific,

798 F2d 172 (6th Cir. 1986).

In United Paper-Works, supra, the Sixth Circuit re-

affirmed the well-established rule which requires a

plaintiff to exhaust his grievance procedure remedies

prior to filing suit. In its opinion, the Court empha-

25

sized that whether an employer has violated the con-

tract is a question for an arbitrator and not for a court

to determine.

In AT&T Technologies, Inc. v. Communication Work-

ers, 475 U.S. 643; 106 S.Ct. 1415; 89 L.Ed.2d 648 (1986),

this Honorable Court held that a court’s role is very

limited. Where matters arguably are under the collec-

tive bargaining agreement, the court should only decide

whether a matter is subject to the labor contract. If it

is, the matter should go through the grievance and

arbitration procedure to be ruled upon by an arbitrator.

In United Steel Workers of America v. Warrior & Golf

Navigation Co., 363 U.S. 574; 80 S.Ct. 1347; 4 L.Ed.2d

1409 (1960), this Honorable Court made it clear that a

party opposing grievance and arbitration procedures

must have unequivocal evidence that the dispute was

not intended to be arbitrated. In the instant case, Plain-

tiff has never contended this matter was not arbitrable.

The alleged fraud never prevented arbitration. The clear,

unrebutted testimony of the Director of Industrial Rela-

tions was the Petitioner’s claim was subject to the

grievance and arbitration procedure.

In Greyhound Lines, Inc., 53 L.A. 464 (Lennard 1969)

the arbitrator held that a disqualified driver’s remedy is

to apply for medical arbitration and that he may seek

medical arbitration as many times as reasonable

“where it appears that [his] health and capabilities have

improved substantially.” In that case, employee X was

certified by his family physician to return to work. The

company doctors, however, disagreed and recommended

against his continued employment as a bus driver. As a

result, the medical arbitration precess was expedited

and a third impartial doctor was appointed to make a

medical determination as to the plaintiff's fitness to be

a bus driver. Like the Petitioner here, employee X had

26

been diagnosed as having heart problems since 1967.

The impartial doctor examined employee X in January

of 1968, one year later, and found that:

“ .. Since I feel that his past myocardial infarc-

tion, the appearance of his electrocardiogram,

and his markedly elevated serum cholesterol

indicate a small but definite risk that his heart

disease would interfere with safe driving of a

motor carrier.” 53 L.A. 465.

The facts of employee X’s case are similar to those of

the Petitioner herein. Here, as in employee X’s case,

Petitioner should have sought contract interpretation

arbitration within 30 days of receipt of the notice of the

medical arbitrator’s opinion. The 30-day requirement is

set out in Section 1, N Article 3.(b), of the labor

contract.

Also, like employee X, Petitioner could have availed

himself of additional medical arbitrations. Petitioner

and the Union testified that Petitioner never filed any

grievance or fully pursued additional medical arbitra-

tions. Since Petitioner’s fraud claim arises out of the

administration of the Collective Bargaining Agreement

language, the interpretation of the contract is control-

ling. This can only be done by the contract interpre-

tation and arbitration proceedings contained in the

Collective Bargaining Agreement. United Steel Workers

of America v. Enterprise Wheel & Car Corp., 363 U.S

593; 80 S.Ct. 1358; 4 L.Ed.2d 1454 (1960); United Steel

Workers of America v. Warrior & Golf, supra; United

Steel Workers of America v. American Manufacturing

Co., 363 U.S. 564; 80 S.Ct. 1343; 4 L.Ed.2d 1403 (1960).

Any alleged fraud by the Respondents was not in

violation of the labor contract, inasmuch as the third

doctor independently addressed the issue of whether or

27

not Petitioner was able to resume his employment as a

bus driver because of his heart. Further, the Sixth Cir-

cuit correctly noted that even assuming arguendo, but

not conceding that GREYHOUND intentionally and

fraudulently withheld Dr. Kantor’s second report; Dr.

Kantor’s first report indicated that the Petitioner was

not able to return to work due to his vision, and Peti-

tioner did not meet GREYHOUND 's internal standards.

Thus, viewing the facts in the light most favorable to

the Petitioner, the alleged fraud, even if true, would not

have prevented the arbitration process from resolving

the matter.

The medical examination clause of the Collective

Bargaining Agreement was never meant for jury inter-

pretation. Questions regarding the interpretation of

labor contract language are to be handled by the Com-

pany and the Union; either by mutual agreement or

through the grievance procedure which included a spe-

cific step to resolve interpretation matters prior to

resorting to labor arbitration. Petitioner never explained

why he did not insist that a grievance be filed, or

why he did not file a grievance himself in accordance

with Section N, Article 3 of the Collective Bargaining

Agreement.

Pursuant to Dill v. Greyhound Corp., 435 F2d 231,

237 (6th Cir. 1971), the trial court should have ruled, as

a matter of law, that Petitioner had to arbitrate the

dispute. Instead, the jury was asked to consider, over

Respondents’ objections, whether it would have been

futile for Petitioner to pursue the grievance procedure.

Here, the trial court conceded “there is no evidence of

futility, so let’s don’t argue that.” Moreover, the trial

court did not understand application of the futility

concept in a labor sense. Nonetheless, despite the trial

court’s own confusion, the special verdict form asked

28

the jury to determine whether Petitioner should have

filed a grievance.

The concept of futility pertains to the issue of

exhaustion of intra-union remedies, under the union

constitution and bylaws. Vaca v. Sipes, supra, at 185;

Bshara v. Eltra Corp. & UAW, 394 F.2d 502 (6th Cir.

1968); Bagsby v. Lewis Brothers, Inc., 820 F2d 799 (6th

Cir. 1987). The jury considered futility in the context of

the grievance procedure, as opposed to its proper con-

text which is an issue that may be raised as a defense

for failure to exhaust intra-union remedies. Republic

Steel v. Maddox, supra, is the landmark case which

clearly enunciates the general rule that an employee is

bound by the terms of a collective bargaining agree-

ment and must attempt to exhaust the exclusive

grievance in arbitration procedures established by that

agreement. An exception to that general rule is an

employer's repudiation of the grievance procedure; and

not futility of pursuing a breach of duty of fair represen-

tation claim against the Union under its constitution

and bylaws. NLRB v. Industrial Union of Marine &

Shipbuilding Workers of America, AFL-CIO, et. al., 391

U.S. 418 88 S.Ct. 1717; 20 L.Ed.2d 706 (1968). The

repudiation exception does not apply in the instant

case inasmuch as there was no evidence presented

to show GREYHOUND repudiated the contractual

grievance procedure. Moreover, Petitioner never tiled

a grievance.

CONCLUSION

The Sixth Circuit Court of Appeals was correct in

ruling Petitioner’s state law fraud claim was clearly

preempted by § 30! of the Labor-Management Relations

Act.

29

RELIEF REQUESTED

WHEREFORE, Respondents, GREYHOUND LINES, INC.,

and JAMES SELBY, respectfully pray this Honorable

Court deny the Petitioner’s request for a Writ of

Certiorari.

Respectfully submitted,

CUMMINGS, McCLOREY, DAVIS & ACHO, P.C.

By: /s/ RONALD G. ACHO (P-23913)

Counsel of Record

33900 Schoolcraft Road

Livonia, Michigan 48150-1392

(313) 261-2400

Counsel for Respondents

Dated: January 24, 1990

A-1

RESPONDENTS’ APPENDIX

MARCH 14, 1971 BULLETIN FROM SAFETY DEPARTMENT,

GREYHOUND LINES, INC.

“Disqualification on Drivers Suffering Heart Attacks”

1)

2)

3)

An employee was required to present a recommen-

dation from his personal physician indicating he

was physically qualified to perform all of the duties

required of the driver. If possible, prior to the

issuance of this statement, the personal physician

should be contacted by the company doctor, who

should explain the DOT requirements, Section 391.

41(b)(4), that a driver have no current clinical diag-

nosis of myocardial infarction, angina pectoris,

coronary insufficiency, thrombosis, or any other

cardiovascular disease of a variety known to be

accompanied by syncope, dyspnea, collapse or con-

gestive cardiac failure. Also, he should point out the

physical and nervous strain in driving a commer-

cial vehicle, our obligation to the safety of our

passengers, the necessity of lifting and carrying

package express and baggage weighing up to 100

pounds, and the changing of tires weighing approxi-

mately 200 pounds, along with the other irritations

that arise with unruly passengers, et cetera.

If the personal physician still approves the driver

for return to work, contact the Safety Department

immediately for further instructions before sending

him to the company doctor.

Following disqualification by the Company doctor,

nothing further is to be done unless the employee

files a grievance for medical arbitration with the

4)

A-2

Union. In that event, the selection of the third

doctor as provided by the Labor Contract is to be

followed.

Upon selection of the third doctor, arrange for the

Company doctor to consult with him in the same

manner as stated in the note under Item (1). In

addition, you are to personally consult with the

third doctor to emphasize the strenuous nature of

the duties of a driver and to stress the company’s

teelings that a man who has suffered a heart attack

jeopardizes the safety of our passengers and, there-

fore does not meet the physical requirements of the

DOT Safety Regulations, Section 391.41(b)(4), Physi-

cal Qualifications for Drivers. (Emphasis added).

In every instance where it becomes known that a driver

has suffered a heart attack, the Safety Department is to

be notified without delay. W D. Weiss.

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