Opposition Brief — Soth v. Baltimore Sunpapers, Inc.

FILED

No. 98-581 NOV 19 1995

OFF

In The SUPREME COURT, U.S.

Supreme Court of the United States

October Term, 1998

*

EDWARD D. SOTH, JR.,

Petitioner,

BALTIMORE SUNPAPERS, INCORPORATED,

THE BALTIMORE SUN COMPANY, DIANA M.

MURPHY, JACK ROSS, JOHN KIDWELL, JAMES BORN,

Respondents.

¢

On Petition For A Writ Of Certiorari

. To The United States Court Of Appeals

For The Fourth Circuit

*

RESPONDENTS’ BRIEF IN OPPOSITION

&

DarRRELL R. VANDEUSEN

Counsel of Record

RaANb!1 KLEIN Hyatt

KOLLMAN & SHEEHAN, P.A.

20 South Charles Street

8th Floor

Baltimore, Maryland 21201

410-727-4300

Counsel for Respondents

Baltimore Sunpapers, Inc.,

The Baltimore Sun Co.,

Diana M. Murphy, Jack Ross,

John Kidwell, James Born

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

\ 0

QUESTION PRESENTED

Whether the United States District Court for the Dis-

trict of Maryland properly held that Section 301(a) of the

Labor Management Relations Act (“LMRA”), 29 U.S.C.

§ 185(a), preempts a state law claim of tortious interfer-

ence with contract.

PARTIES TO THE PROCEEDING

Petitioner accurately identifies the parties to the pro-

ceeding, except that there is no corporate entity known as

Baltimore Sunpapers, Incorporated.

The Baltimore Sun Company, a Maryland corpora-

tion, is a wholly owned subsidiary of The Times Mirror

Company.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ......-----++-+-sssreeeee? i

PARTIES TO THE PROCEEDING ........----++++>> ii

TABLE OF CONTENTS.......-----:-:sseeeecrtteee iii

TABLE OF AUTHORITIES .......----+++eeeeeeeeee: iv

OPINIONS BELOW.......------eeeere rset 1

STATUTORY PROVISION INVOLVED........-----. 1

STATEMENT OF THE CASE......--------2sss000e? l

REASONS FOR DENYING THE PETITION......--. 4

A. None Of The Compelling Reasons That Warrant

Granting A Writ Of Certiorari Are Present..... 4

B. Section 301(a) Of The LMRA Pzeempts A State

Law Claim If Its Resolution Requires Interpreta-

Hom OF A CBA... .cccccccccccsscrccscccccscess 6

C. Resolution Of Soth’s State Law Claim Of Tortious

Interference With Contract Requires Interpreta-

tion Of The CBA.......----ceecceereeeceeecees 7

CONCLUSION ......-:--ce eee ee te treeeees oS ay tte 10

MORI, «go ccna cd nha rdicssocteececseshecccenss es la

ltl te””””~”~CS*”

iV

TABLE OF AUTHORITIES

Page

CASES:

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)... .6, 7

Baylis v. Marriott Corp., 906 F.2d 874 (2d Cir. 1990) ...-.. 8

Beard v. Carrollton R.R., 893 F.2d 117 (7th Cir. 1989) ..... 8

Carpraro v. United Parcel Serv. Co., 993 F.2d 328 (3d

ce.) PEE Peete terre re re 9

Carter v. Smith Food King, 765 F.2d 916 (9th Cir.

ROOTS «on okavndecadacwudded aseAwa pen seen anes sae: 9

DeCoe v. General Motors Corp., 32 F.3d 212 (6th Cir.

International Brotherhood of Electrical Workers, Local

613 v. Fowler Indus., Inc., 691 F.Supp. 1431 (N.D.

Ga. 1988), rev’d on other grounds, 884 F.2d 551

(11th Cir. 1989).........cce scence sence ec caereeesees 9

International Union v. Covenant Coal Corp., 977 F.2d

895 (4th Cir. 1992)........-- cece cece scceseceeceeese 8

Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th

< s., ePrr er errr rerTEt re tet eee 8

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399

CNN sss cha Weir ca cake rr an enn ae vee 6, 7

Magerer v. John Sexton & Co., 912 F.2.. 525 (1st Cir.

| a eee yrreT Tee eC Te yr EL oo Teas, 8

Vv

TABLE OF AUTHORITIES - Continued

McCormick v. AT&T Technologies, Inc., 934 F.2d 531

(4th Cir. 1991) (en banc), cert. denied, 502 U.S.

TOES (1992)... 5. ccc ssnrccncceeccsoncesacereces

Morris v. Ambassador Nursing Home, Inc., 845

F. Supp. 1164 (E.D. Mich. | SP

Peterson v. Air Line Pilots Ass'n, 759 F.2d 1161 (4th

Cir.), cert. denied, 474 U.S. 946 (1985).......--:

Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994)

San Antonio Community Hosp. v. Southern Calif.

Dist. Council, 125 F.3d 1230 (9th Cir. 1997) ....

Scott v. Machinists Automotive Traders, 827 F.2d 589

(Oth Cir. 1967). ......2-0ccesccssccereennescess

Sullivan v. Conway, 959 F.Supp. 877 (N.D. Ill. 1997),

aff'd, 157 F.3d 1092 (7th Cir. 1993) ......--++->

Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962) ..

Turner v. American Federation of Teachers, 138 F.3d

878 (11th Cir. 1998)......-.----eeeee ere eeeee:

STATUTES:

98 USC. § 1284(1) ......-eeceeceec cess eens eee:

09 US.C. § 18S(a) ...-0.--e eee ceecere eee ee ee eee:

ee HN i isi cee Bocce eee.

Page

3

OPINIONS BELOW

The opinion of the Fourth Circuit Court of Appeals

(Pet. App. A-1 to A-11) is unreported and its citation is

Soth v. Baltimore Sunpapers, Inc., et al., 145 F.3d 1325, 1998

WL 225149 (4th Cir. 1998). The decision of the United

States District Court for the District of Maryland (Pet.

App. A-12 to A-24) is reported as Soth v. The Baltimore Sun

Co., et al., 4 F. Supp. 2d 417 (D. Md. 1996).

STATUTORY PROVISION INVOLVED

The only statute relevant to the Petition for Writ of

Certiorari is Section 301(a) of the LMRA, 29 U.S.C.

§ 185(a), reproduced infra at App. la.

+

STATEMENT OF THE CASE

Although the facts of this case should not prove

particularly important to the determination of whether to

grant the Petition for Writ of Certiorari, the misleading

and contrived version of events set forth in the Petition

must be corrected.!

Soth’s Petition arises from his attempts over the past

nine years to harass his former employer, The Baltimore

Sun Company (“The Sun”) and four of its managers, after

1 The facts in the text of this Brief in Opposition are

described by the Fourth Circuit and the District Court in their

respective opinions below. (Pet. App. A-1 to A-9; A-13 to A-15.)

an impartial arbitrator found that there was just cause to

discharge him. Soth was an automotive advertising sales

representative at The Sun. (Pet. App.-at A-13.) Soth’s

employment was governed by a Collective Bargaining

Agreement (“CBA”) between the Washington-Baltimore

Newspaper Guild (“the Union”) and The Sun. Article VIII

of the CBA provided that an employee may not be dis-

charged except for just and sufficient cause. (Id. at A-4 to

A-5.) Article XX, section 20.1 of the CBA, governing con-

flicts of interest and the right to engage in outside activ-

ities, provided:

Employees shall be free to engage in any activ-

ities outside their working hours which do not

constitute service for any interest or publication

in competition with [The Sun]. No employee,

without permission of [The Sun], shall use in the

course of such activities any material or featured

title of [The Sun] or exploit in any way the

employee’s connection with [The Sun].

(Id. at A-5.)

On July 30, 1990, the Sun learned that Soth was

engaging in outside advertising in direct competition

with The Sun and in violation of the conflict of interest

section of the CBA. (Id.) Four days later, Soth was dis-

charged for his operation of an outside advertising

agency that was a direct conflict of interest with his

employment at The Sun. (Id. at A-5 to A-7, A-14 to A-15.)

Soth challenged his discharge through the grievance and

binding arbitration provisions of the CBA. Following two

days of hearing, in which fourteen witnesses testified, an

impartial arbitrator held there was “just and sufficient

cause” for Soth’s discharge. (Id. at A-7.)

Upon receiving the arbitration decision, Soth

embarked on an admittedly vindictive course of conduct.

First, he filed an unfair labor practice charge against The

Sun with the National Labor Relations Board (“NLRB”),

claiming that he was fired in retaliation for his union

activities. The NLRB dismissed his charge. (Id. at A-7 to

A-8.) Soth then filed charges with the Equal Employment

Opportunity Commission (“EEOC”) and the American

Arbitration Association (“AAA”). Both charges were dis-

missed. (Id. at A-8.) Soth then filed a lawsuit in the

United States District Court of Maryland against The Sun,

the Union, the AAA, and the arbitrator himself, alleging a

breach of the CBA, breach of the duty of fair representa-

tion, and denial of a fair hearing because of an alleged

conspiracy between the Union and The Sun. The District

Court dismissed that Complaint. (Id.)

Soth then filed two complaints in state court against

Respondents. Both complaints raised four claims: (1) abu-

sive discharge; (2) violation of the Maryland Antitrust

Act; (3) tortious interference with contract; and (4) civil

conspiracy. One of Soth’s complaints added a fifth count

under 42 U.S.C. § 1981.2 In these actions, Soth alleged for

the first time that he was discharged in retaliation for

opposing what he believed was a possible antitrust viola-

tion by The Sun. (Id. at A-8 to A-9.)

Respondents removed both cases to the United States

District Court for the District of Maryland. Respondents

2 Soth conceded that his Section 1981 claim was not viable

in light of this Court’s decision in Rivers v. Roadway Express, Inc.,

511 U.S. 298 (1994). The District Court granted Soth’s request to

withdraw the Section 1981 claim. (Pet. App. at A-16.)

then filed a Motion for Summary Judgment, which Soth

opposed. Soth also filed a Motion to Remand the com-

plaints to state court. (Id. at A-16.)

The District Court determined that Soth’s tortious

interference with contract claim was preempted by Sec-

tion 301 of the LMRA and exercised supplemental juris-

diction over the remaining state law claims. (Id. at A-18 to

A-19.) The District Court granted Defendants’ Motion for

Summary Judgment on all of Soth’s claims and denied

Soth’s motion to remand.3 (Id. at A-20 to A-23.)

Soth appealed the District Court’s decision to the

Fourth Circuit Court of Appeals, which affirmed the Dis-

trict Court’s decision for the reasons that court set forth.

(Id. at A-11.) Soth’s Petition to this Court follows.

¢

REASONS FOR DENYING THE PETITION

A. None Of The Compelling Reasons That Warrant

Granting A Writ Of Certiorari Are Present.

Soth seeks to invoke this Court’s discretionary

review under-28 U.S.C. § 1254(1). Because this Court is

not obligated to hear Soth’s case, he must explain why his

3 Soth moved to alter or amend the judgment, claiming that

(i) his tortious interference claim did not require an

interpretation of the CBA, and (ii) the District Court should

have certified questions regarding abusive discharge to the

Court of Appeals of Maryland. He did not challenge the entry of

summary judgment on the antitrust claim or the civil conspiracy

claim. The District Court denied the Motion to Alter or Amend

the Judgment.

case deserves consideration. The question presented in

Soth’s petition, however, does not fall within the catego-

ries that justify this Court’s discretionary review. Rather,

this case involves the straightforward application of Sec-

tion 301(a) of the LMRA.

Soth argues that the lower courts erred in holding

that review of the CBA was essential to assessing his

claim of tortious interference with his employment at The

Sun. (Pet. at 14). Soth’s employment with The Sun, of

course, was governed by the terms of the CBA. In

requesting certiorari, Soth asks the Court to step in and

stop Section 301(a) preemption of Maryland law. Both the

United States District Court for the District of Maryland

and the Fourth Circuit, however, concluded that Section

301(a) preemption is proper regarding Soth’s claim of

tortious interference with contract.

As set forth below, the Fourth Circuit’s decision in

this case is consistent with its own prior decisions, is

consistent with decisions of other federal jurisdictions,

and does not involve an unsettled question of law. Fur-

ther, the decisions below are consistent with this Court's

rulings on Section 301(a) preemption. There is nothing

compelling, conflicting, unsettled, or unusual about

either of the decisions below to warrant this Court's

review. Soth’s petition should be denied.

B. Section 301 Of The LMRA Preempts A State Law

Claim If Its Resolution Requires Interpretation Of

A CBA.

Section 301(a) of the LMRA provides that claims for

the breach of a collective bargaining agreement are inter-

preted under federal law.* Section 301 not only provides

the federal courts jurisdiction over controversies involv-

ing collective bargaining agreements, but also “ ‘autho-

rizes federal courts to fashion a body of federal law for

the enforcement of these collective bargaining agree-

ments.’ ” Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399, 403 (1988) (citation omitted). In Teamsters v. Lucas

Flour Co., 369 U.S. 95 (1962), this Court explained that

“the subject matter of § 301 is peculiarly one that calls for

uniform law.” Id. at 103.

Section 301’s preemptive effect is necessary “to

ensure uniform interpretation of collective bargaining

agreements, and thus to promote the peaceable, consis-

tent resolution of labor-management disputes.” Lingle,

486 U.S. at 404. “If the policies that animate § 301 are to

be given their proper range . . . the pre-emptive effect of

§ 301 must extend beyond suits alleging contract viola-

tions.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 210

(1985). Section 301(a) extends beyond contract claims to

4 Section 301(a) provides that: “Suits for violation of

contracts between an employer and a labor organization

representing employees in an industry affecting commerce

. may be brought in any district court of the United States

having jurisdiction of the parties, without respect to the amount

in controversy or without regard to the citizenship of the

parties.” 29 U.S.C. § 185(a), reprinted infra at App. la.

preempt tort claims that are “inextricably intertwined

with consideration of the terms of the labor contract.” Id.

at 213.

The test for Section 301 preemption is well-settled: A

state law claim is preempted by Section 301 if its resolu-

tion requires the interpretation of a collective bargaining

agreement. Lingle, 486 U.S. at 413. In McCormick v. AT&T

Technologies, Inc., 934 F.2d 531 (4th Cir. 1991) (en banc),

cert. denied, 502 U.S. 1048 (1992), the Fourth Circuit,

applying Lingle, determined that state tort claims are

preempted “where reference to a collective bargaining

agreement is necessary to determine whether a ‘duty of

care’ exists or to define ‘the nature and scope of that

duty.’ ” Id. at 536 (citation omitted).

The separate elements of the state law cause of action

are examined by the court to determine whether resolu-

tion of any element requires interpretation of a collective

bargaining agreement. Id. at 531. Section 301 preemption

of state tort claims is fundamental. “Any other result

[than preemption] would elevate form over substance

and allow parties to evade the requirements of § 301 by

relabeling their contract claims as claims for tortious

breach of contract.” Lueck, 471 U.S. at 211.

C. Resolution Of Soth’s State Law Claim Of Tortious

Interference With Contract Requires Interpretation

Of The CBA.

Soth argues that the District Court erred in conclud-

ing that interpretation of the CBA was essential to his

claim of tortious interference with contract. (Pet. at

14-15). Soth maintains that Maryland law does not

require the existence of a contract as a necessary element

of a tortious interference claim, and even if a contract

does exist, recovery for tortious interference does not

require a showing that the contract was breached. (Id. at

15-16). Soth attempts to avoid preemption by arguing that

he has only alleged tortious interference with his “eco-

nomic and employment relations” and not the CBA. (Id.

at 24). These arguments do not affect the resolution of

Soth’s case.

The contract governing Soth’s employment relation-

ship at The Sun was the CBA. That contract defined the

manner in which Soth’s employment could be termi-

nated. That contract defined the scope of outside activ-

ities in which an employee was permitted to engage

while working for The Sun. As a result, the substance of

Soth’s claims can only relate to his dispute over whether

there was “just cause” for his discharge for engaging in

illegal “outside activities” as defined by Sections 8.3 and

20.1 of the CBA. Soth’s claim for tortious interference was

related directly to, and inextricably intertwined with, the

CBA.

The Fourth Circuit’s decision below is consistent

with all federal appellate courts that have addressed

whether tortious interference with contract claims are

preempted by Section 301(a) of the LMRA. E.g., Magerer v.

John Sexton & Co., 912 F.2d 525, 530-31 (1st Cir. 1990);

International Union v. Covenant Coal Corp., 977 F.2d 895,

899 (4th Cir. 1992); Fox v. Parker Hannifin Corp., 914 F.2d

795, 800 (6th Cir. 1990); Beard v. Carrollton R.R., 893 F.2d

117, 122 (7th Cir. 1989); Johnson v. Anheuser Busch, Inc., 876

F.2d 620, 624 (8th Cir. 1989); Scott v. Machinists Automotive

Traders, 827 F.2d 589, 591-92 (9th Cir. 1987). See also Baylis

v. Marriott Corp., 906 F.2d 874 (2d Cir. 1990) (Railway

Labor Act preempts state law claim of tortious interfer-

ence with contract); Carpraro v. United Parcel Serv. Co., 993

F.2d 328 (3d Cir. 1993) (same).

Moreover, even if this Court were to assume that

Soth’s tortious interference claim does not directly

involve the CBA, federal case law confirms Soth’s claim

still is preempted, and that the decisions below were

proper. Preemption is required when “resolution of [the

plaintiff’s] claim will not involve the direct interpretation

of a precise term of the CBA, but . . . will require a court

to address relationships that have been created through

the collective bargaining process and to mediate a dispute

founded upon rights created by a CBA.” DeCoe v. General

Motors Corp., 32 F.3d 212, 218 (6th Cir. 1994). Therefore,

“even if the state law claim presented . . . is not directly

dependent on analysis of the terms of the [CBA], it is at

least indirectly dependent on such analysis and is pre-

empted by federal law.” International Brotherhood of Elec-

trical Workers, Local 613 v. Fowler Indus., Inc., 691 F. Supp.

1431, 1438 (N.D. Ga. 1988), rev'd on other grounds, 884 F.2d

551 (11th Cir. 1989).

Uniform reasoning by lower federal courts estab-

lishes that the tortious interference claim, which Soth

maintains is not dependent upon the CBA, nevertheless is

preempted by Section 301(a). E.g., Peterson v. Air Line

Pilots Ass'n, 759 F.2d 1161, 1170-71 (4th Cir.), cert. denied,

474 U.S. 946 (1985) (intentional interference with contrac-

tual relationship preempted); Carter v. Smith Food King,

765 F.2d 916, 921 (9th Cir. 1985) (wrongful interference

with a business relationship preempted); San Antonio

Community Hosp. v. Southern Calif. Dist. Council, 125 F.3d

1230, 1234-35 (9th Cir. 1997) (intentional interference with

10

prospective economic advantage and interference with

contractual rights preempted); Turner v. American Federa-

tion of Teachers, 138 F.3d 878, 884 (11th Cir. 1998) (tortious

interference with employment claim preempted); Sullivan

v. Conway, 959 F. Supp. 877, 882 (N.D. Ill. 1997), aff'd, 157

F.3d 1092 (7th Cir. 1998) (intentional interference with

employment relationship claim preempted); Morris v.

Ambassador Nursing Home, Inc., 845 F. Supp. 1164, 1167

(E.D. Mich. 1994) (intentional interference with employ-

- ment relationship claim preempted).

¢

CONCLUSION

The courts below properly held that Section 301(a) of

the LMRA preempts Soth’s claim for tortious interference

with contract. The Question for Review is not important

to anyone but Soth. Respondents respectfully request that

the petition for a writ of certiorari be denied.

Respectfully submitted,

DarRELL R. VANDEUSEN

Counsel of Record

RaNp1 Kein Hyatt

KoLLMAN & SHEEHAN, P.A.

20 South Charles Street

8th Floor

Baltimore, Maryland 21201

410-727-4300

Counsel for Respondents

——— ee

la

APPENDIX A

STATUTORY PROVISION

Section 301(a) of the Labor Management Relations

Act, 29 U.S.C. § 185(a), provides as follows:

§ 185. Suits by and against labor organizations

(a) Venue, amount, and citizenship

Suits for violation of contracts between an employer

and a labor organization representing employees in an

industry affecting commerce as defined in this chapter, or

between any such labor organizations, may be brought in

any district court of the United States having jurisdiction

of the parties, without respect to the amount in contro-

versy or without regard to the citizenship of the parties.