Petition for Writ of Certiorari — International Brotherhood of Teamsters v. Overnite Transportation Co.

supreme Court, U.S

FILED

No, OA 97 4 DEC 1620)

EE ee

IN THE

Supreme Court of the Anited States

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CCHAUFFEURS, WAREHOUSEMEN AND HELPERS

OF AMERICA, AFL-CIO

and

TEAMSTERS LOCAL UNION 657,

Petitioners,

Vv.

OVERNITE TRANSPORTATION COMPANY,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Texas

PETITION FOR A WRIT OF CERTIORARI

G. WILLIAM BAAB *

SANFORD R. DENISON

BAAB & DENISON, L.L.P.

Stemmons Place, Suite 1100

2777 N. Stemmons Freeway

Dallas, Texas 75207-2284

(214) 637-0750

JAMES L. HICKS, JR.

JAMES L. HICKS, JR., P.C.

Stemmons Place, Suite 1100

2777 N. Stemmons Freeway

Dallas, Texas 75207-2284

* Counsel of Record (214) 630-8621

Counsel for Petitioners

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

© SS ©

S490

QUESTION PRESENTED

Whether an employer’s state law claim of tortious

interference with customer relations, based on unions’

peaceful distribution of handbills containing allegedly

defamatory statements, is preempted by Sections 7 and

8(b)(4) of the National Labor Relations Act, Title 29 U.S.C.

§§ 157 and 158(b)(4), under the broad preempticn doctrine

enunciated in San Diego Bldg. Trades Council v. Garmon,

359 U.S. 236 (1959)?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED........:ssssssssessesssessnsensensnssensess i

DECISIONS BELOW ........:.sscssessesssenseneneennensensnrensennens 2

STATEMENT OF JURISDICTION............. ciamianieaie 2

STATUTORY PROVISIONS INVOLVED..........-++++++ 2

STATEMENT OF THE CASE.........scesseseseesssssesserensenens 2

A. Proceedings In The State Trial Court.............- 2

B. The Decision Of The State Court Of Appeals. 3

C. The Texas Supreme Court’s Refusal To

za

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-%

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=

>

REASONS FOR GRANTING THE WRIT......-.-+:+0000+

I. Law Governing The National Labor Relations

Act’s Preemp-Tion Of State Court Claims........ : 5

Il. Peaceful Handbilling In The Context Of

Union Organiza-Tional Activity, Such As That

Involved Here, Is Activity Presumptively

Protected By Section 7 Of The National Labor

Relations Act, And Is Subject To Regulation

By The National Labor Relations Board In In-

Terpreting And In Applying Sections 7 And 8

Of The ACt. ......c.cccsscsssssssscersensensnrsnssenennenessnssners 7

Ill. Existing Case Decisions Have Not Squarely

Addressed And Re-Solved The Preemption

Issue Presented Here...........sssessrereeeerseeessenseees 10

TV. SUIMMar.......ccsceecserersecsrsrsnsereneenssessenrenensnrensnens 12

CONCLUSION. .......:-sscsscsssserserssessssssereeesenssnessnserensenseoes 13

iV

TABLE OF CONTENTS—Continued

Page

APPENDIX A: Order of the State Trial Court (201st

Judicial District of Travis County, Texas)

in Overnite Transportation Company v.

International Brotherhood of Teamsters,

Chauffeurs, Warehousemen and Helpers of

America, AFL-CIO and Teamsters Local Union

657, Cause No. 99-11702-A (Signed and filed

FRIIS PG; AD cevccucscsasietiuscsnitecortttdepadianintateniens la

APPENDIX B: Opinion and Judgment of the Court

of Appeals for the Third District of Texas in

Overnite Transportation Company v. Interna-

tional Brotherhood of Teamsters, AFL-CIO, and

Teamsters Local Union 657, No. 03-00-00390-

CV Ciled Marchh 29, 2001) ecvcevercsecssnsisvesvsscossesiesie 3a

APPENDIX C: Order of the Supreme Court of Texas

(Austin) in International Brotherhood of Team-

sters, Chauffeurs, Warehousemen and Helpers of

America, AFL-CIO and Teamsters Local Union

657 v. Overnite Transportation Company, No.

01-0393 (Dated September 20, 2001)..............:0000 lla

APPENDIX D: Statutory Provisions ,

FRE Be 6 BSF ecasitcdnchahperstecereceistabcctstovitelandie 13a

BRS SP OBA. F TI tisciviccinccctbchivacteauieibetin 13a

Vv

TABLE OF AU1.:ORITIES

CASES Page

BE & K Construction Co. v. United Brotherhood

of Carpenters, 90 F.3d 1318 (8th Cir. 1996) ..... 11

Edward J. DeBartolo Corp. v. Florida Gulf

Coast Bldg. and Constr. Trades Council, 485

6 Rf i.) MSR ons Case ee eon ee eae 8,9

Hennepin Broadcasting Associates, Inc. Vv.

N.L.R.B., 408 F. Supp. 932 (D.C. Minn. 1975). 1]

Hospital and Service Employees Local 399, 293

NLRB 601 (1989), on remand from Hospital

and Service Employees Local 399 v. NLRB,

743 F.2d 1417 (9th Cir. 1984) .........ccsssscssseesees 9

Iron Workers Local 386, 325 NLRB No. 141,

158 LRRM 1180 (1998), enforcement denied

on other grounds, 182 F.3d 948 (D.C.

Kaufman, et al. v. Allied Pilots Association,

‘et al., No. 00-11223, 2001 WL 1485575

ee I idechcretentartsntabiocieniictinnnheiccsaienare 6,7

Lechmere Inc. v. National Labor Relations

Bard. Fas VS SF AAI Se ictiisntssiccssttectsinscccreies 7

Linn v. United Plant Guard Workers of America,

ee Ce icicistinsineeanebiaiairineeaeninencilennanatioaiin 6, 10

Mobile Mechanical Contractors v. Carlough,

664 F.2d 4B) (Sita Cir. 1961) cccrccccccscccccccescesccesce 8, 11

National Labor Relations Board v. Babcock &

Wilcox, Co., 351 U.S. 105 (1956).........cccecceeveee 7

National Labor Relations Board v. Servette, Inc.,

FEE Fai A Se ttabaciinicduicinkcndeatimereceincdontunnse 9

Pennsylvania Nurses Ass’n v. Pennsylvania State

Educ. Ass’ n, 90 F.3d 797 (3d Cir. 1996) ........... 11, 12

San Diego Bldg. Trades Council v. Garmon, 359

BED FI Ee es wtattinetetaptnnienevithinnibevndetnpeensnenne passim

vi

TABLE OF AUTHORITIES—Continued

Sears, Roebuck & Co. v. San Diego County

District Council of Carpenters, 436 U.S.

Br (BFS) cecrscvescsvihavsinsentinveniciecinenitonntnininicvetios

Teamsters Local 20 v. Morton, 377 U.S. 252

United Auto Workers v. Russell, 356 U.S. 634

(1958).......

STATUTES

National Labor Relations Act, Title 29 U.S.C.

§§ 157, 158

POSSESSES OHESHEESESEEESEOSESESEEETESESESEEE TER EEEEOEES

FURS Be Gites 6 FEE sicsnseensintasensetinivarenennnint

Page

passim

IN THE

Supreme Court of the United States

No.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CCHAUFFEURS, WAREHOUSEMEN AND HELPERS

OF AMERICA, AFL-CIO

and

TEAMSTERS LOCAL UNION 657,

Petitioners,

Vv.

OVERNITE TRANSPORTATION COMPANY,

Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Texas

PETITION FOR A WRIT OF CERTIORARI

International Brotherhood of Teamsters, AFL-CIO and

Teamsters Local Union 657 pray that a writ of certiorari issue

to review the decision arid judgment of the Texas Supreme

Court (and in the context of the Texas Supreme Court’s

refusal of review, the decision and judgment of the Court of

Appeals for the Third District of Texas) in International

Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America, AFL-CIO and Teamsters Local Union

657 v. Overnite Transportation Company, No. 01-0393

(Supreme Court of Texas) (September 20, 2001).

2

DECISIONS BELOW

The decision of the Supreme Court of Texas denying

petition for review was without opinion and is not reported.

It is reproduced as Appendix C in the appendix to this

Petition (“Pet. App.”) at 1la-12a. The Opinion and Judg-

ment of the Court of Appeals for the Third District of Texas

in Case No. 03-00-00390-CV, dated March 29, 2001, is

unreported and unpublished, and is reproduced as Appendix

B at Pet. App. 3a-10a. The Texas State Trial Court’s Order

Granting Partial Summary Judgment in Cause No. 99-11702,

dated February 24, 2000, is unreported and unpublished, and

is reproduced as Appendix A at Pet. App. 1a-2a.

STATEMENT OF JURISDICTION

The Supreme Court of Texas’ judgment denying petition

for review was entered on September 20, 2001. This Court

has jurisdiction under Title 28 U.S.C. § 1257.

STATUTORY PROVISIONS INVOLVED

Section 7 of the National Labor Relations Act, Title 29

U.S.C. § 157 governs the right of unions and employees to

engage in peaceful organizational activity. Its full text is set

out in Appendix D at Pet. App. 13a.

Section 158(b)(4) of the National Labor Relations Act,

Title 29 U.S.C. § 158(b)(4) governs unions’ right to

make peaceful appeals to third parties in the context of a

labor dispute. Relevant text is set out in Appendix D at

Pet. App. 13a-14a.

STATEMENT OF THE CASE

A. Proceedings In The State Trial Court

1. Introduction. This case arose out of an ongoing,

nationwide labor dispute between Overnite Transportation

Company (“Overnite”), various teamster local unions

3

including Petitioner Local 657 (“Local 657”) and Petitioner

International Brotherhood of Teamsters, AFL-CIO (“IBT’’).

(CR 7" The dispute involved teamster local unions’

campaign to organize Overnite employees and to negotiate an

initial collective bargaining agreement with Overnite.

2. Proceedings in the State Trial Court. Overnite sued

IBT and Local 657 alleging claims of defamation and tortious

interference with customer relations based on the unions’

peaceful distribution of handbills (fliers) to Overnite’s Texas

customers. (CR 2-7). The handbills stated (falsely, Overnite

alleged) that the National Labor Relations Board had found

Overnite guilty of hundreds of labor law violations, including

discrimination, intimidation and retaliation against workers.

(CR 6). Overnite contended that distributing the allegedly

defamatory handbills to its customers injured its business

relations and contracts. (CR 7).

Local 657 and IBT moved for summary judgment on

Overnite’s tortious interference claim, contending that their

acts were justified and that in any event the National Labor

Relations Act preempted Overnite’s claim. (CR 24-25,

47-49; Pet. App. 5a). The trial court granted the Motions for

Summary Judgment without stating its ground and severed

the tortious interference claim, making the partial summary

judgment as to Overnite’s claim of tortious interference final

for appeal. (CR 30; Pet. App. 1a-2a, 5a). Overnite appealed.

B. The Decision Of The State Court Of Appeals

The State Court of Appeals (“Court of Appeals”)

acknowledged the general, controlling principle articulated by

the United States Supreme Court: “‘[w]hen an activity is

' Reference to the record in the Texas Court of Appeals for the Third

District is by the notation “CR” followed by pagination. References to the

Court of Appeals’ Judgment and Opinion are by the notation “Pet. App.”

followed by pagination.

4

arguably subject to § 7 or § 8 of the Act, the States as well as

the federal courts must defer to the exclusive competence of

the National Labor Relations Board if the danger of state

interference with national policy is to be averted.’ San Diego

Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959).”

(Pet. App. 8a). However, the Court of Appeals then deter-

mined that IBT and Local 657 had failed to establish that

Overnite’s claim of tortious interference was preempted

because: (a) they “were required [and failed] to show that

handbilling based on defamatory statements is protected”;

and (b) although they cited authority analyzing whether

certain union activities are prohibited under Section 158,

they had “fail[ed] to articulate a cogent legal basis for

preemption.” (See Pet. App. 9a). The Court of Appeals

concluded that IBT and Local 657 had “not carried their

burden to show that they are entitled to judgment on that

ground [preemption] as a matter of law.” (Pet. App. 9a). On

this rationale, the State Court of Appeals reversed and

remanded the District Court’s grant of summary judgment on

behalf of IBT and Local 657 against Overnite’s claim of

tortious interference. (Pet. App. 10a). IBT and Local 657

filed a Petition for Review with the Supreme Court of Texas.

C. The Texas Supreme Court’s Refusal To Review

The Supreme Court of Texas denied without opinion the

Petition for Review filed by IBT and Local.657, presenting a

final judgment for purposes of review by this Court on

Petition for Writ of Certiorari.”

REASONS FOR GRANTING THE WRIT

In the context of the Court of Appeals’ holding that

Overnite’s claim of tortious interference with customer

? No review was sought as to the Court of Appeals’ disposition

concerning the affirmative defense of justification.

5

relations is not preempted by the National Labor Relations

Act, this case presents an important, unresolved issue which

should be considered and decided by this Court.

I. Law Governing The National Labor Relations Act’s

Preemption Of State Court Claims.

The controlling framework for determining whether

particular state law claims are preempted by the National

Labor Relations Act was established by the United States

Supreme Court in San Diego Bldg. Trades Council v.

Garmon, 359 U.S. 236, 243-45 (1959). It is for the National

Labor Relations Board, and not the courts, to decide whether

a particular controversy falls within the scope of sections 7

or 8 ° of the National Labor Relations Act:

At times it has not been clear whether the particular

activity regulated by the States was governed by § 7 or

§ 8 or was, perhaps, outside both these sections. But

courts are not primary tribunals to adjudicate such

issues. It is essential to the administration of the Act that

these determinations be left in the first instance to the

National Labor Relations Board.

. . . In the absence of the Board’s clear determination

that an activity is neither protected nor prohibited or of

compelling precedent applied to essentially undisputed

facts, it is not for this Court to decide whether such

activities are subject to state jurisdiction.

Garmon, 359 U.S. at 244-46. Quoting Garmon, the Fifth

Circuit in Kaufman, et al. v. Allied Pilots Association,

> Sections 7 and 8 of the National Labor Relations Act are codified as

Sections 157 and 158 respectively of Title 29 of the United States Code.

See Labor Management Relations Act, 1947, 29 U.S.C.A. §§ 157, 158

(West 1998). Section 157 of the Act confers rights on employees

regarding labor organizations, while Section 158 describes unfair labor

practices by both employers and labor organizations.

6

et al., No. 00-11223, 2001 WL 1485575 (Sth Cir (Tex.)), in

finding a state tortious interference with contract claim

preempted, stated:

Preemption is necessary because “the exercise of state

power over a particular area of activity threaten[s]

interference with the clearly indicated policy of

industrial relations ....” [Garmon, 359 U.S. at 243].

Concerned with “conflict in its broadest sense” the Court

eschewed a focus on the type of state regulation or

claim, and adopted an approach that looks to the “nature

of the activities which the states have sought to

regulate.” [/d.]

Kaufman, 2001 WL 1485575 at *2.

Clearly, the preemptive principle is a broad one “—broader

than the Court of Appeals acknowledged. Contrary to the

statement of the Court of Appeals, preemption is not

dependent on initial “proof” in the trial court that the subject

* Garmon carved out two limited exceptions to the preemption

doctrine. Garmon, 359 U.S. at 243-44. See also Kaufman, 2001

WL 1485575 at *2. First, the Garmon Court stated that preemption would

not attach to conduct which “touched interests so deeply rooted in local

feeling and responsibility that, in the absence of compelling congressional

direction, we could not infer that Congress had deprived the States of a

power to act.” Garmon, 359 U.S. at 244. These cases will typically

involve “conduct marked by violence and imminent threats to the public

order.” Jd. at 247. See also United Auto Workers v. Russell, 356 U.S. 634

(1958). There is no allegation of violence in this case. The second

exception recognized by Garmon relates to conduct which is of “merely

peripheral concern to federal labor law.” Garmon, 395 U.S. at 243. An

example is seen in Linn v. Plant Guard Workers, Local 114, 383 U.S. 53

(1966), where a claim that a union maliciously defamed a managerial

employee in the course of an organizational campaign was characterized

as of “merely peripheral concern to federal labor law.” /d. at 61. Peaceful

union persuasion of an employer’s customers in the course of a labor

dispute cannot fairly be characterized as “merely peripheral . . . to federal

labor law.” As discussed in the text, infra, pp. 7-10, Sections 7 and

8(b)(4) directly regulate such conduct. |

7

activity is protected. “Garmon preemption does not depend

on the merits of an adjudication of the conduct’s legality

under federal law ... .” Kaufman, 2001 WL 1485575 at 3.

By requiring proof on the merits that the activity was

protected before it would find preemption, the Court of

Appeals usurped the authority Congress gave to the National

Labor Relations Board to determine what conduct is protected

by federal labor law. This is exactly what state courts are

prohibited from doing by Garmon and its progeny.

II. Peaceful Handbilling In The Context Of Union

Organizational Activity, Such As That Involved

Here, Is Activity Presumptively Protected By

Section 7 Of The National Labor Relations Act,

And Is Subject To Regulation By The National

Labor Relations Board In Interpreting And In

Applying Sections 7 And 8 Of The Act.

Peaceful handbilling conducted by union representatives

and members in the context of an organizational campaign or

labor dispute has historically been regarded as presumptively

within the protection of Section 7 of the National Labor

Relations Act. See, e.g., Lechmere, Inc. v. National Labor

Relations Board, 502 U.S. 527, 531-37 (1992); National

Labor Relations Board v. Babcock & Wilcox, Co., 351 U.S.

105, 109-113 (1956). In analyzing the legality of handbilling

when directed to customers or consumers of a primary

employer (such as Overnite) with whom a labor dispute

exists, attention has been turned to the “proviso” ° to Section

5 The referenced statutory wording (the proviso to Section 8(b)(4))

states in relevant part: “nothing contained in such paragraph shall be

construed to prohibit publicity, other than picketing, for the purpose of

truthfully advising the public, including consumers and members of a

labor organization, that a product or products are produced by ai

employer with whom the labor organization has a primary dispute and are

distributed by another employer... .” 29 U.S.C. § 158(b)(4).

8

8(b)(4) of the Act stating that union appeals to such persons

(customers or consumers) are not prohibited if they

“truthfully advise” of the nature of the dispute with the

primary employer. In dealing with the ultimate legality of

peaceful handbilling directed to or concerning customers or

other employers doing business with a primary employer such

as Overnite, the National Labor Relations Board (“the

Board”) and Supreme Court have applied the publicity

proviso and have determined whether the handbilling is

“protected” by the publicity proviso or instead “coercive” in

violation of Section 8(b)(4).° See generally Edward J.

DeBartolo Corp. v. Florida Gulf Coast Bldg. and Constr.

Trades Council, 485 U.S. 568, 578-88 (1988); National

Labor Relations Board v. Servette, Inc., 377 U.S. 46, 54-56

(1964). See also Hospital and Service Employees Local 399,

® The Court of Appeals cited Sears, Roebuck & Co. v. San Diego

County District Council of Carpenters, 436 U.S. 180, 190 (1978) for the

proposition that the preemption doctrine is applied differently depending

upon whether the conduct is “arguably prohibited” or “arguably

protected.” (CR 4-5). Asserting, albeit incorrectly, that IBT based its

claim for preemption only on the “arguably protected” nature of the

conduct at issue, and that IBT only cited cases addressing “arguably

prohibited” conduct, the Court of Appeals concluded that IBT had

“fail[ed] to articulate a cogent legal basis for preemption ....” (CR 5).

However, even assuming IBT’s claim to preemption rested only on the

arguably protected nature of the conduct, there exists no basis in Sears or

elsewhere in this Court’s jurisprudence to conclude that the preemption

doctrine is applied differently depending upon whether the conduct at

issue is arguably protected or arguably prohibited. “The fundamental

precept of Garmon is that liability under a state cause of action is

preempted whenever it poses a serious risk of conflict with national labor

policy.” Mobile Mechanical Contractors v. Carlough, 664 F.2d 481, 487

(Sth Cir. 1981) [emphasis added}. That potential for conflict exists

whether the conduct at issue is arguably protected or prohibited. As the

Fifth Circuit noted in Kaufman, when state regulation of conduct poses a

risk of conflict with federal labor policy “both prohibited and protected

conduct are shielded from liability under state law.” Kaufman, 2001

WL 1485575 at *3.

9

293 NLRB 602, 602-03 (1989), on remand from Hospital and

Service Employees Local 399 v. NLRB, 743 F.2d 1417 (9th

Cir. 1984). In the context of determining whether or not

handbilling “truthfully advises” interested parties and is

therefore entitled to the protection of the publicity proviso,

the Board itself has suggested that whether or not information

contained in a handbill is “false or misleading” may be

relevant and has analyzed such allegations and content in

determining whether or not use of the information tended

to be misleading as to the nature of the primary dispute.

See Hospital and Service Employees Local 399, 293 NLRB

at 602 n. 3:

In the absence of evidence that the information itself was

false or misleading, the Board presumed that the

CAB -and NTB handbill data was factually accurate.

However, the Board found that the use of the

information tended to be misleading as to the nature of

the primary dispute. See 263 NLRB 997 fn. 7 and 998.

In affirming the Board’s conclusion that the handbills

were not protected by the publicity proviso, the court of

appeals found it unnecessary to decide this latier issue.

[Hospital and Service Empioyees Local 399], 743 F.2d

at 1425 n. 5.

The Board continues to analyze the truth or falsity of

handbilling information in determining whether the hand-

billing is “protected” on the one hand or “prohibited” on the

other. See Iron Workers Local 386, 325 NLRB No. 141, 158

LRRM 1180 at 1186 (1998), enforcement denied on other

grounds, 182 F.3d 948 (D.C. Cir. 1999). Clearly, analysis of

the truth or falsity of the contents of peaceful handbilling

directed at the customers of a primary employer (such as

Overnite) is very much the grist of the National Labor

Relations Board’s mill in analyzing whether such handbilling

is protected by Section 7 and the publicity proviso to

Section 8 on the one hand, or prohibited by Section 8 on the

other. The Court of Appeals’ analysis does not acknowledge

10

the Board’s ongoing interest in the truth or falsity of peaceful

handbill content, and does not apply preemption law in

that context.

III. Existing Case Decisions Have Not Squarely

Addressed And Resolved The Preemption Issue

Presented Here.

In Linn v. United Plant Guard Workers of America, Local

114, 383 U.S. 53 (1966), the United States Supreme Court

held that a state court libel action was not preempted,

although based upon statements made by a union during a

union organizing campaign. But the Supreme Court in Linn

very carefully restricted the holding of that case to its facts:

“(t]he question before us . . . involve[s] the extent to which

the National Labor Relations Act, as amended, supersedes

state law with respect to libels published during labor

disputes.” Jd. at 57. (Emphasis added). The limitation of the

Court’s holding to libel actions was repetitively stated. /d. at

58, 67. Here, Overnite receives full benefit of the holding in

Linn by the continued pendency of its defamation claim in the

District Court.

Nothing in Linn addresses a separate claim of tortious

interference with customer relations—a claim which focuses

on union handbilling addressed to and concerning the

customers of Overnite. As shown above, a claim grounded in

peaceful union organizational handbilling addressed to the

customers of the primary employer, with whom the union has

a labor dispute, has typically been the topic of Board and

Court analysis in determining whether or not such handbilling

is protected by Section 7 and Section 8’s publicity proviso on

the one hand or prohibited by Section 8 on the other.

This Court has long held that federal labor law displaces

state law and claims as to peaceful picketing activity directed

at an employer’s customers. See Teamsters Local 20 v.

Morton, 377 U.S. 252 (1964). We know of no decided case

11

which squarely addresses and decides whether or not an

allegation that peaceful union handbilling contains (allegedly)

malicious, defamatory statements saves a state court claim of

tortious interference with customer relations from Garmon

preemption. Three (3) existent cases, B E & K Construction

Co. v. United Brotherhood of Carpenters, 90 F.3d 1318,

1328-30 (8th Cir. 1996), Mobile Mechanical Contractors v.

Carlough, 664 F.2d 481 (Sth Cir. 1981) and Hennepin

Broadcasting Associates, Inc. v. N.L.R.B., 408 F. Supp. 932,

937 (D.C. Minn. 1975), hold that claims of tortious inter-

ference based upon peaceful picketing appeals to third parties

are preempted; however, none involves or treats allegations

that the appeals contain malicious, defamatory statements

or information.

A case decided by the United States Court of Appeals for

the Third Circuit is instructive. In Pennsylvania Nurses Ass'n

v. Pennsylvania State Educ. Ass'n, 90 F.3d 797 (3d Cir.

1996), one nurses’ union sued another on the basis that the

second union had “promulgated false, malicious, and

defamatory propaganda designed to destroy the reputation of

[the first union]” in the context of a union organizational

campaign involving the competing unions. /d. at 800. The

district court held that state court claims of defamation were

not preempted, but determined that claims alleging “inter-

ference with present and prospective contractual relations”

between the allegedly defamed union and former

representatives, local units and contracting employers were

preempted. The Third Circuit carefully analyzed existing law

governing preemption under the National Labor Relations

Act, and the nature of the state court tort claims involved,

emphasized that the alleged wrongful conduct occurred in the

context of an organizing campaign, and concluded that the

state court tort claims involving interference with contractual

relations: (1) involve activity actually or arguably prohibited

by the National Labor Relations Act; (2) did not involve an

issue deeply rooted in local feeling and responsibilities; and

12

(3) would risk substantial interference with the jurisdiction of

the National Labor Relations Act were it litigated in the state

courts. Jd. at 801-05. The Third Circuit panel majority then

affirmed that state tort claims of interference with contractual

relations based on allegations of “malicious, defamatory

statements” were preempted. Id. at 805.’

In Pennsylvania Nurses Ass’ n, the Third Circuit recognized

the separability of state court libel/defamation claims govern-

ed by Linn on the one hand and tortious interference with

third-party relations on the other. The Third Circuit also

recognized that the National Labor Relations Act broadly

regulates a union’s peaceful conduct in the context of a union

campaign—and that state regulation of such conduct should

not be extended beyond Linn: Whether or not this Court

ultimately agrees with the preemption analysis of the United

States Court of Appeals for the Third Circuit in the referenced

case, that decision involves state court tort claims strikingly

similar to Overnite’s claim of tortious interference with

contractual relations, and proves that a substantial question

worthy of review is presented.

IV. Summary.

The bottom line is this: the union conduct at issue—

peaceful, written persuasion of the customers of an employer

with whom the union has a labor dispute—has been regulated

by Congress in Sections 7 and 8(b)(4) of the NLRA.

Overnite, and the State Court of Appeals, seek to displace the

National Labor Relations Board’s power to adjudicate claims

based on this conduct by the artifice of a particular state cause

of action—tortious interference with customer relations. Any

defensible state interest in regulating this subject matter—

” At the same time, the Third Circuit declined to find that a state

claim of defamation was preempted, applying Linn narrowly as we

have suggested it should be. See Pennsylvania Nurses Ass'n, 90 F.3d

at 805-06.

<=—_ , se _——( se nna

13

recognized by Linn—is preserved by the libel/defamation

claim which continues to pend in state court. The exercise of

state jurisdiction over the separate claim of tortious

interference with customer relations offends basic Garmon

principles. A writ must be granted to resolve this issue and

redress this wrong.

CONCLUSION

For the reasons stated, a Petition for Writ of Certiorari to

the Supreme Court of Texas should be granted.

Respectfully submitted,

G. WILLIAM BAAB *

SANFORD R. DENISON

BAAB & DENISON, L.L.P.

Stemmons Place, Suite 1100

2777 N. Stemmons Freeway

Dallas, Texas 75207-2284

(214) 637-0750

JAMES L. HICKS, JR.

JAMES L. HICKS, JR., P.C.

Stemmons Place, Suite 1100

2777 N. Stemmons Freeway

Dallas, Texas 75207-2284

* Counsel of Record — (214) 630-8621

Counsel for Petitioners -