Opposition Brief — Tamburello v. Comm-Tract Corp.

he Supreme Court, iS.

‘ ¥. + =

APR 24 1996

No. 95-1615 .

In The —_

Supreme Court of the United States

*

October Term, 1995

VINCENT R. TAMBURELLO,

Petitioner,

vs.

COMM-TRACT CORPORATION, JOHN F. POLMONARI,

EDWARD MENARD and STEVEN DICKIE,

Respondents.

On Petition for Writ of Certiorari to the United States Court

of Appeals for the First Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TIMOTHY P. VAN DYCK

Counsel of Record

JOSHUA L. DITELBERG

EDWARDS & ANGELL

Attorneys for Respondents

101 Federal Street

Boston, Massachusetts 02110

(617) 439-4444

8036

ez (800) 3 APPEAL * (800) 5 APPEAL « (800) BRIEF 21

AZ enices, inc

i

QUESTIONS PRESENTED

I. Whether the First Circuit was correct in affirming the

District Court’s dismissal of Petitioner’s RICO claims as being

preempted by the National Labor Relations Board’s primary

jurisdiction to adjudicate labor disputes, where Petitioner’s

claims were premised entirely on allegations of retaliation for

Petitioner’s activities as a union steward?

II. Whether the First Circuit was correct in affirming the

District Court’s dismissal of Petitioner’s Massachusetts Civil

Rights Act claim as being preempted by the National Labor

Relations Board’s primary jurisdiction to adjudicate labor

disputes, where Petitioner’s claim was premised entirely on

allegations cf retaliation for Petitioner’s activities as a union

steward?

ii

RULE 29.6 STATEMENT

Pursuant to Rule 29.6 of the Supreme Court Rules, Comm-

Tract Corporation advises the Court that it has no parent

company, no corporate subsidiaries and no affiliates.

'

'

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PARTIES BELOW

The proceedings below were a civil action commenced by

plaintiff Vincent R. Tamburello. Defendants below, and

respondents here, are Comm-Tract Corporation, John F.

Polmonari, Edward Menard and Steven Dickie.

iv

TABLE OF CONTENTS

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Constitutional Provisions and Statutes Involved ...... l

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Reasons for Denying the Writ. .........cccccccccces +

I. Review of Question I is inappropriate, given the

absence of a significant conflict among the federal

courts created by the First Circuit’s decision. .. 4

II. In view of the First Circuit’s correct application of

settled principles of law, review of Question II is

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Contents

Page

TABLE OF CITATIONS

Cases Cited:

Amalgamated Ass'n of Street Elec. Ry. & Motor Coach

Employees v. Lockridge, 403 U.S.274(1971) ...... 4,7,8

Batchelder v. Allied Stores Corp.,393 Mass. 819,473 N.E.

PAGED -F diva caw eVes pene s o554 obtaee came 11

Belknap v. Hale, 463 U.S.491 (1983) ............... 9

Breininger v. Sheet Metal Workers Int’l Assoc., Local

Union No. 6, 493 U.S. 67 (1989) ................. 8

Brennan v. Chestnut, 973 F.2d 644 (8th Cir. 1992) ..... 6

Brown v. Keystone Consol. Indus., Inc.,680 F. Supp. 1212

ERA SEE cia ob tiwkd na daas kane nea eeswoeks 6

Butchers’ Union, Local No. 498 v. SDC Inv. Inc., 631 F.

mec Ben take. OOK, BOG) nag nis ccden scenes 6

Chaulk v. MCAD, 70 F.3d 1361 (1st Cir. 1995) ........ 8

Connell Construction Co. v. Plumbers & Steamfitters,421

eR it, on) Pe ree Re ere rk et Hearn ee 5, 6,7

Hood v. Smith Transfer Corp., 762 F. Supp. 1274 (W.D. Ky.

LPR D ans seciink's 6's ced SURRCA OUbe Cok Wel bw 6

vi

Contents

Page

Kaiser Steel Corp. v. Mullins, 455 U.S.72 (1982) ..... 6

Lingle v. Magic Chef, Norge Div., 486 U.S. 399 (1988) . 10

Local 926, IUOE, AFL-CIO v. Jones, 460 U.S. 669 (1983)

beaccecweadsbesdbsVédaets bORN ONSEN LONE aS EeES 9,10

Mann v. Air Line Pilots Assoc., 848 F. Supp. 990(S.D. Fla.

RODS) «ois vb Ss4 0060d45id0400408Rn ROR AESE 6

McDonough v. Gencorp, Inc., 750 F. Supp. 368 (S.D. Ill.

SDNY si cuca vavenbeddhesdans ReMemescaeekeeen 6

MHC, Inc. v. International Union, United Mine Workers of

Am., 685 F. Supp. 1370 (E.D. Ky. 1988) ........... 6

San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236

(1959) vv sccvdccadueeeeths ogedies tee 4,7,8,9,10

Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180(1978)

WEVTTETTTEL Ty re re 9

Talbot v. Robert Matthews Distributing Co.,961 F.2d651

(7a Cis, ISGEE ch Seed odwitevdseveakeees ~.eonees 6,7

Thierren v. Hamilton, 849 F. Supp. 110 (D. Mass. 1994) |

6s 6 edbb bbe Rees 060446444 CORES AREER ee 11 |

United States v. Boffa, 688 F.2d 919 (3rd Cir. 1982), cert.

dented, 460 U.S. IGE CTSSS) 6 cv bi ae ce cceec celia 6,7

remreeremertiniatiaeeaiiiiiiiminliiiililiiaailiuiiitilii

vii

Contents

Page

United States v. Thordarson, 646 F.2d 1323 (9th Cir. 1981) ae

SE SIUC STRERUETD ccccccccesescceuss 4,8,10

Statutes Cited:

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Contents

United States Constitution Cited:

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1

OPINIONS BELOW

Tamburello v. Comm-Tract Corp., et al., No. 93-11946-Z

(D. Mass. 1995).

Tamburello v. Comm-Tract Corp., et al., 67 F.3d 973 (1st

Cir. 1995).

STATEMENT OF JURISDICTION

(i) The Judgment of the United States Court of Appeals for

the First Circuit which Petitioner seeks to have reviewed by this

Court issued on October 2, 1995.

(ii) Norehearings were requested by Petitioner.

(iii) No cross-petitions for writ of certiorari have been

filed.

(iv) Jurisdiction of this Court is conferred by 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

United States Constitution, Article VI, § 2; 18 U.S.C.

§ 1961; 18 U.S.C. § 1962; 29 U.S.C. § 15/; 29 U.S.C. § 158;

Mass. Gen. Laws ch. 12, §§ 11H, 111.

STATEMENT OF THE CASE

The Petitioner, Vincent R. Tamburello (“Tamburello”), was

employed by Comm-Tract Corporation (“Comm-Tract”) in

Massachusetts from April, 1988 to May 10, 1993. He, like all

members of his bargaining unit, was subject to the terms of a

cia

2

collective bargaining agreement between Comm-Tract and the

Communication Workers of America, AFL-CIO, Local 4340 (the

“Union”). He became a union steward in July, 1991. Soon

afterwards, three Comm-Tract officers, John F. Polmonari

(“Polmonari”), Edward Menard (“Menard”), and Steven Dickie

(“Dickie”) (collectively, “Individual Defendants”) allegedly

began retaliating against Tamburello solely because of his union

steward status. (See Appendix to Petition at 2a-3a, 17a).

Tamburello alleged that the Individual Defendants engaged

in the following instances of retaliation: replacing Tamburello

with less experienced workers, thereby preventing him from

being eligible for extra lead pay; giving him menial job

assignments; reassigning Tamburello to jobs requiring him to

travel long distances; withholding Tamburello’s personnel file

from him; taking Tamburello off projects to deny him overtime

pay; forcing Tamburello to take a vacation or face termination of

his employment; taking his company vehicle away; and making

anti-union statements and threats to him. Tamburello contended

that such acts were designed to force him to resign from Comm-

Tract. (/d. at 3a, 19a).

Tamburello did not file a grievance under the collective

bargaining agreement until October, 1992 (after he had stepped

down as union steward), nor did he complain to any Union

official before then. At no time did he file a charge with the

National Labor Relations Board (“NLRB”) claiming an unfair

labor practice had been committed against him. Tamburello

resigned from Comm-Tract on May 10, 1993.

In September, 1993, Tamburello brought suit in the United

States District Court for the District of Massachusetts asserting:

(i) violations of the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c), (d) (1988)

by the Individual Defendants, predicated upon alleged extortion

bd

t)

3

as defined in the Hobbs Act, 18 U.S.C. § 1951 (Counts I and II);

(ii) a breach of the collective bargaining agreement by Comm-

Tract premised upon 29 U.S.C. § 185 (1988), i.e., § 301 of the

Labor Management Relations Act (“LMRA”)(Count III); a

violation of the Massachusetts Civil Rights Act, Mass. Gen.

Laws ch. 12, § 111 (1988) (Count IV); and (iv) common law

tortious interference with contractual relations (Count V). (See

Appendix to Petition at 3a, 17a-18a). After an initial motion to

dismiss for failure to state a claim was filed on behalf of all

Defendants, Tamburello amended his complaint as of right on

December 22, 1993. Thereafter, all Defendants again moved to

dismiss.

The District Court granted Defendants’ motion to dismiss in

its entirety on February 17, 1995, dismissed the amended

complaint, and entered judgment for Defendants on all counts.

(Id. at 16a, 21a). The District Court concluded that the NLRB’s

primary jurisdiction over matters arguably within the scope of

§§ 7 and 8 of the National Labor Relations Act (“NLRA”)

preempted Counts I, II, IV, and V of the amended complaint. (/d.

at 18a-20a). With respect to Count III, the District Court held that

Tamburello did not “refer to any particular provision of the

collective bargaining agreement that he claims was breached nor

[did] he specify the nature of such breach.” (/d. at21a).

On March 16, 1995, Tamburello filed a notice of appeal to

the United States Court of Appeals for the First Circuit. He did

not appeal the District Court’s dismissal of Counts III and V of

the Amended Complaint. (/d. at 3a n. 1). On October 2, 1995,

after argument, the First Circuit issued a written opinion and

affirmed the judgment of the District Court. (Jd. at 15a).

4

REASONS FOR DENYING THE WRIT

I.

REVIEW OF QUESTION I IS INAPPROPRIATE,

GIVEN THE ABSENCE OFA SIGNIFICANT CONFLICT

AMONG THE FEDERAL COURTS CREATED BY THE

FIRST CIRCUIT’S DECISION.

The decision of the Court of Appeals with respect to Counts

I and II of Tamburello’s Amended Complaint (i.e., Question I)

does not warrant review by this Court. The First Circuit held that

Tamburello’s RICO claims were preempted by the NLRB’s

primary jurisdiction over arguable unfair labor practices

(“Garmon preemption”). (See Appendix to Petition at 4a - 13a).

In so holding, the First Circuit applied principles set forth in

San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236

(1959), and its progeny. See, e.g., Amalgamated Ass'n oj Street

Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274,

276 (1971); Vaca v. Sipes, 386 U.S. 171, 179-180 (1967). The

Garmon Court held that “[w]Jhen an activity is arguably subject

to § 7 or § 8 of the [NLRA], the States as well as federal courts

must defer to the exclusive competence of the [NLRB] if the

danger of state interference with nationat policy is to be‘averted.”

Garmon, 359 U.S. at 245. (See Appendix to Petition at 4a). The

First Circuit agreed with the District Court that Tamburello’s

allegations, if true, would constitute unfair labor practices

prohibited by the NLRA. (/d. at 6a). Accordingly, Tamburello’s

RICO claims were properly dismissed in accordance with

Garmon preemption. (/d. at 10a).

The First Circuit described three “generally recognized

exceptions to the NLRB’s primary jurisdiction,” and concluded

that Tamburello’s RICO claims came within none of them. (/d. at

5

6a - 7a). The first exception is “where Congress has expressly

carved out an exception to the NLRB’s primary jurisdiction.”

(Id. at 6a). As the First Circuit noted, Congress did notcarve out

any such exception with respect to Hobbs Act extortion, as

alleged by Tamburello. To the contrary, “the only labor-related

‘racketeering’ activity expressly listed as predicates to liability

under RICO are actions concerning restrictions of payments and

loans to labor organizations, or those relating to embezzlement

from labor funds.” (/d.) (citing 18 U.S.C. § 1961(1)(C); 29

U.S.C. §§ 185, 501(c)). The second exception, when regulated

activity is grounded in “interests so deeply rooted in local

feeling” that the states are not deprived of the ability to act, did

not apply to Tamburello’s RICO claims, because it does not

concern itself with the relationship between two federal laws

(i.e., RICO and the NLRA) (/d. at 7a). Tamburello does not take

issue with the First Circuit's formulation or application of this

exception.

The third exception “holds that the NLRB’s exclusive

jurisdiction does not apply if the regulated activity is merely a

peripheral or collateral concern of the labor laws.” (/d.). This

exception was explained by this Court in Connell Construction

Co. v. Plumbers & Steamfitters, 421 U.S. 616, 626 (1975)

(“[T]he federal courts may decide labor law questions that

emerge as collateral issues in suits brought under independent

federal remedies[.]”). Here, the First Circuit determined that

“the unfair labor practice issues implicated by Tamburello’s

complaint are not merely collateral to his RICO claims”;

accordingly, the First Circuit concluded that this exception did

not apply. (Appendix to Petition at 9a) (footnote omitted).

Tamburello contends that this Court “has never squarely

addressed” the issue created by the third exception, “namely

whether RICO, a federal criminal statute with an express civil

remedy, can be gutted by another federal statute, the NLRA[.]”

6

(Petition at 4-5). Tamburello is incorrect. This Court addressed

the relationship between the NLRA and other federal laws

regulating labor-related activities in Connell. The Connell

doctrine has been applied by this Court in Kaiser Steel Corp. v.

Mullins, 455 U.S. 72, 85 (1982), and by numerous lower federal

courts. Further, there is no significant difference among the

federal courts in assessing the particular relationship between

RICO and the NLRA requiring this Court’s attention.

As the First Circuit accurately stated, “several federal

courts take the position that courts must defer to the primary

jurisdiction of the NLRB if the underlying conduct of the RICO

claim is wrongful only by virtue of, or reference to, the labor

laws.” (Appendix to Petition at 7a - 8a). See, e.g., Brennan v.

Chestnut, 973 F.2d 644, 646 (8th Cir. 1992); Talbot v. Robert

Matthews Distributing Co., 961 F.2d 651, 662 (7th Cir. 1992);

Mann v. Air Line Pilots Assoc., 848 F. Supp. 990, 993 (S.D. Fla.

1994); McDonough v. Gencorp, Inc., 750 F. Supp. 368, 370(S.D.

Ill. 1990); MHC, Inc. v. International Union, United Mine

Workers of Am., 685 F. Supp. 1370, 1378 (E.D. Ky. 1988); Brown

v. Keystone Consol. Indus., Inc., 680 F. Supp. 1212, 1224-1225

(N.D. Ill. 1988); Butchers’ Union, Local No. 498 v. SDC Inv. Inc.,

631 F. Supp. 1001, 1011 (E.D. Cal. 1986). See also Hood v. Smith

Transfer Corp., 762 F. Supp. 1274, 1287 (W.D. Ky. 1991)(noting

’ that “any jurisdictional conflict between the NLRA and RICO is

merely illusory.”). These courts consistently took this position

regardless of whether they concluded, on the facts before them,

that preemption was appropriate.

Further, the cases Tamburello himself relies upon are not at

all inconsistent with this position given the facts confronting

those courts. In United States v. Boffa, 688 F.2d 919, 923-924

(3rd. Cir. 1982), cert. denied, 460 U.S. 1022 (1983), the RICO

predicate acts included obstruction of justice, and mail fraud in

a scheme to secure higher profits. In United States v. Thordarson,

C—O —

7

646 F.2d 1323, 1325 (9th Cir. 1981), the RICO predicate acts

included the use of explosives to damage vehicles during a

strike, and arson.' Such acts are wrongful without reference to

federal labor law, unlike those acts which Tamburello alleged

were committed by the Individual Defendants. (See Appendix to

Petition at 9a-10a.). See also Talbot, 961 F.2d at 662

(distinguishing Boffa on such grounds).

Tamburello also asserts that the First Circuit’s decision

dismissing his RICO counts as preempted by the NLRB’s

primary jurisdiction is in error because “the constitutional

doctrine of preemption obviously deals with federal/state

conflicts rather than with federal/federal conflicts of applicable

law.” (Petition at 5). This argument deserves little attention. In

describing the relationship between RICO and the NLRA, the

First Circuit used the term, “preemption.” (See Appendix to

Petition at 5a). This nomenclature is consistent with that used by

most other federal courts that have considered the issue. See,

e.g., Talbot, 961 F.2d at 659. Indeed, this Court has referred to the

primary jurisdiction of the NLRB as “preemp([ting] state and

federal jurisdiction to remedy conduct that is arguably protected

or prohibited by the [NLRA].” Lockridge, 403 U.S. at 276.

(emphasis added). Quite simply, as the First Circuit recognized,

the Garmon doctrine of NLRB primary jurisdiction which “was

' Originally concerned only with federal supremacy over

conflicting state laws ... has been extended to cover the

relationship between the NLRA and other federal statutes.”

(Appendix to Petition at 5a n. 2) (citing Connell, supra)

(emphasis in original). |

Tamburello’s other argument regarding Question I also is

without merit. Tamburello asserts that “when a breach of the

1. They also included conversion of union funds in violation of 29 U.S.C. §

501(c) which was one of the two labor-related “racketeering” activities expressly listed

as a predicate to RICO liability. See 18 U.S.C. § 1961(1)(C).

8

Union’s Duty of Fair Representation (“DFR”) is alleged. . .

resort to the federal courts in such instances is proper and the

NLRA therefore is no impediment to the same.” (Petition at 6)

(citing Breininger v. Sheet Metal Workers Int’l Assoc., Local

Union No. 6,493 U.S. 67 (1989) and Vaca, supra). Tamburello,

however, did not appeal the District Court’s dismissal of Count

III of the Amended Complaint. (See Appendix to Petition at 3an.

1). Accordingly, he “ha[d] no viable duty of fair representation

claim before the [Court of Appeals.]” (Jd. at 13a). Further,

Tamburello’s RICO counts were not “hybrid” breach of contract/

breach of DFR claims brought under § 301 of the LMRA. To the

extent that Breininger and Vaca furnish an exception to Garmon

preemption, itis only with respect to such claims. (/d.).

The Court of Appeals’ decision affirming the dismissal of

Tamburello’s RICO counts is sound. Congress, through the

passage of the NLRA, sought to “create a uniform, nationwide

body of labor law interpreted by acentralized expert agency —

the [NLRB].” (Appendix to Petition at 5a). Over several

decades, this Court has crafted a broad doctrine of NLRB

primary jurisdiction over labor controversies, making it clear

that artful pleading cannot displace the NLRB’s function in

settling labor disputes. See, e.g., Lockridge, 403 U.S. at 292 (“It

is the conduct being regulated, not the formal description of

governing legal standards, that is the proper focus of concern”).

If theories such as Tamburello’s RICO counts are permitted to

elude NLRB preemption, the NLRB’s role as chief arbiter of

labor disputes will be severely compromised; “there are few

unfair labor practices which could not be similarly repackaged.”

Chaulk v. MCAD, 70 F.3d 1361, 1370 (1st Cir. 1995). This would

create a “system of labor dispute adjudication parallel to the

NLRB ... leaving the state and federal courts to grapple

piecemeal with issues Congress intended primarily for NLRB

resolution.” Jd. Accordingly, the First Circuit’s decision below

does not require review by this Court.

9

II.

IN VIEW OF THE FIRST CIRCUIT’S CORREC?

APPLICATION OF SETTLED PRINCIPLES OF LAW,

REVIEW OF QUESTION IIIS UNWARRANTED.

The First Circuit’s decision with respect to Count IV of

Tamburello’s Amended Complaint (i.e., Question IT) likewise

does notcall for review by this Court. The First Circuit held that

Garmon preemption required dismissal of Tamburello’s

Massachusetts Civil Rights Actclaim. (See Appendix to Petition

at 13a- 15a). Inso holding, it agreed with the District Court that

Respondents’ alleged conduct did not fall within the “local

interests” exception to Garmon preemption. One of the

prerequisites of this exception is that “the controversy presented

to the state court” be different from “that which could have been,

but was not, presented to the [NLRB].” Sears, Roebuck & Co. v.

Carpenters, 436 U.S. 180, 197 (1978). The First Circuit noted

that the controversy raised by Tamburello’s Massachusetts Civil

Rights Actclaim was “identical” to that which would be heard by

the NLRB. (See Appendix to Petition at 15a). Accordingly, it

relied upon Garmon and Sears, Roebuck in concluding that

preemption was appropriate. (/d.).

The First Circuit’s decision is correct.and does not warrant

review by this Court. In his Petition, Tamburello asserts that it “is

in conflict with applicable decisions of this Court,” although he

cites no such decisions. (Petition at 6). This is not surprising. The

Garmon preemption doctrine is well-settled law, and the First

Circuit properly applied Sears, Roebuck to Tamburello’s claim

under the state civil rights statute. See, e.g., Belknap v. Hale, 463

U.S. 491,510 (1983) (citing Sears with approval); Local 926,

10

IUOE, AFL-CIO v. Jones, 460 U.S. 669, 681 (1983) (same).?

Tamburello confuses Garmon preemption with preemption

of state-law actions by § 301 of the LMRA. In this regard,

Tamburello asserts that his claim “could be resolved without

resort to interpretation of the Collective Bargaining

Agreement.” (Petition at 7). Apparently, he makes such an

assertion because this Court has held that if a “state-law claim

can be resolved without interpreting the [collective bargaining]

agreement itself,” it is not preempted by § 301. Lingle v. Magic

Chef, Norge Div., 486 U.S. 399, 409-410 (1988). This has

nothing to do with Garmon preemption, i.e., diminishing

“significant risk of state interference with the unfair labor

practice [jurisdiction] of the NLRB.” (Appendix to Petition at

15a). Section 301 preempts state-law claims involving “[s]uits

for violation of contracts between an employer and a labor

organization. . .or between any such labor organizations,” i.e.,

the interpretation and enforcement of collective bargaining

agreements. However, Tamburello’s claim under Mass. Gen.

Laws ch. 12 §11I was not to enforce rights arising under the

collective bargaining agreement; it was to obtain a statutory

2. Tamburello further asserts that the First Circuit’ s decision affirming the

dismissal of Count IV of the Amended Complaint is in error because “a breach of

the Union’s DRF [sic] was properly alleged.” (Petition at 7). This is irrelevant to

the instant consideration of Garmon preemption. The duty of fair representation

inheres in a union; a breach of such duty is a predicate to employer liability only in

a breach of contract action arising under § 301 of the LMRA. See, e.g., Vaca v.

Sipes, 386 U.S. 171, 185-193 (1967). Tamburello’s Massachusetts Civil Rights

Act claim was not such an action.

il

remedy akin to that available under 42 U.S.C. § 1983 (1988).°

Accordingly, the scope of § 301 preemption is irrelevant to

dismissal of Count IV of Tamburello’s Amended Complaint.

CONCLUSION

For the reasons stated above, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

TIMOTHY P. VAN DYCK

Counsel of Record

JOSHUA L. DITELBERG

EDWARDS & ANGELL

Attorneys for Respondents

101 Federal Street

Boston, MA02110

(617) 439-4444

3. Tamburello characterizes the Massachusetts Civil Rights Act as “in

essence a state version of the Hobbs Act, but with an express civil remedy.”

(Petition at 6). This ignores what the Massachusetts courts and the federal courts

construing the Massachusetts Civil Rights Act have said with respect to the

statute’s purpose. See, e.g., Thierren v. Hamilton, 849 F. Supp. 110, 115(D. Mass.

1994) (“[t]he Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 111, and

42 U.S.C. § 1983 are parallel statutes.”); Batchelder v. Allied Stores Corp., 393

Mass. 819, 822-23, 473 N.E.2d 1128, 1131 (1985). Regardless, it is clear that the

statute is not intended to vindicate rights grounded in contract, as Tamburello

implicitly acknowledges.