# Opposition Brief — Craig v. Brigadier (No. 07-534) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1610%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2007 ## Text i No. 07-534 | Ney ? { 2697 ; j i OrtiCe OF THE CLERK SUSE EME COURT, U.S. In The Supreme Court of the Gnited States ® MATTHEW A. CRAIG, Petitioner, ¥. JOHN BRIGADIER; SUSAN M. BRIGADIER; DAVID L. BRIGADIER; JACQUELYN F. LENSON; RISER FOODS COMPANY, d/b/a GIANT EAGLE, INC., Respondents. + On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit ¢ RESPONDENTS’ BRIEF IN OPPOSITION ® FRANK W. BUCK Counsel of Record ROBERT M. WOLFF MARK V. WEBBER LITTLER MENDELSON 1100 Superior Avenue, 20th Floor Cleveland, OH 44114 Phone: (216) 696-7600 Facsimile: (216) 696-2038 fbuck@littler.com rwolff@littler.com mvwebber@littler.com COCKLE LAW BRIEF PRINTING CO. (su0) 225-69 OR CALL COLLECT (402) 342-2831 QUESTIONS PRESENTED Whether or not this Court should grant review of this routine hybrid §301 action in which the lower courts correctly applied this Court’s ample precedent in finding that Plaintiff’s claims are completely preempted? Whether or not this Court should grant review in this case despite Plaintiff’s inability to identify any divergence among the Circuit Courts of Ap- peals from this Court’s ample precedent in the area of preemption? . Whether or not this Court should grant review in this case even though Plaintiff’s claims would undermine the well-settled deference that is to be accorded to labor arbitration awards? il CORPORATE DISCLOSURE STATEMENT PURSUANT TO SUPREME COURT RULE 29.6 The parent Company of Riser Foods Company d/b/a Giant Eagle is Giant Eagle, Inc. There is no publicly held Company that owns 10% or more of its stock. iil TABLE OF CONTENTS QUESTIONS PRESENTED CORPORATE DISCLOSURE STATEMENT REASONS WHY THE PETITION SHOULD BE DENIED 4 II. Plaintiff Has Mischaracterized the Deci- sions of the Sixth Circuit Court of Ap- peals and Has Not Remotely Established the Existence of a Conflict Among the Circuits This is a Poor Case for Review Because the Record is Clouded by Plaintiff’s Ef- forts to Evade the Labor Arbitration De- cision that Found that He Was Properly Discharged for Insubordination CONCLUSION 1V TABLE OF CONTENTS - Continued Page APPENDIXA -— Statutes and Rules............... App. 1 APPENDIX B —- Excerpts from Collective Bar- ION FINS vise vcrnvainscencencrecsetsoiasbinones App. 10 APPENDIX C —- Sexual Harassment Policy and Work Rules and Petitioner’s Acknowledge- ee I ii cntiesssrnastincsdanniieispantiddetabiaids App. 22 APPENDIX D -— Petitioner’s Initial Grievance... App. 34 APPENDIX E - Summary of Pertinent Collec- tive Bargaining Agreement, Sexual Harass- ment Policy, and Work Rule Provisions........ App. 41 APPENDIX F - Arbitration Decision............. App. 50 TABLE OF AUTHORITIES CASES Akron-Canton Waste Oil v. Safety Kleen Oil Servs. Inc., 81 Ohio App. 3d 591, 611 N.E.2d 955 (9th Dist. 1992) Allis-Chalmers v. Lueck, 471 U.S. 202 (1985) Avuco Corp. v. Aero Lodge 735, 390 U.S. 557 Beneficial National Bank v. Anderson, 539 U.S. 1 (2003) Caterpillar, Inc. v. Williams, 482 U.S. 386 (1997) Central Transport, Inc. v. Four Phase Systems, Inc., 936 F.2d 256 (6th Cir. 1991) Craig v. Brigadier, No. 1:04-CV-1741 slip op. at 4-5 (N.D. Ohio March 30, 2006) Decoe v. General Motors Corporation, 32 F.3d 212 (6th Cir. 1994) Diamond Wine & Spirits, Inc. v. Dayton Het- delberg Distributing Co., Inc., 148 Ohio App.3d 596, 774 N.E.2d 775 (3d Dist. 2002) Electrical Workers v. Hechler, 481 U.S. 851 CNT a os sank nin cibuailivadiooedaxguanetanien naan aenamnalal 12 Fox v. Parker Hannifin Corp., 914 F.2d 795 (6th Cir. 1990) Franchise Tax Bd. Of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1 (1983) vi TABLE OF AUTHORITIES -— Continued Page Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246 RERESTERGREE Sy aetna oe eon Cn Ne ee EN 13 Int'l Union, United Mine Workers of America uv. Covenant Coal Corp., 997 F.2d 895 (4th Cir. SII child eun iconic Goealratibindedouiaeammnbdédiammbilonieiaiinidins 17 Jones v. General Motors Corp., 939 F.2d 380 NT IR IIIT Dliccodsscaistis is aidechadileibavacseaihaselioacecbusiitiaidliaddueniitiens 2 Kenty v. Transamerica Premium Ins. Co., 72 Ohio St.3d 415, 650 N.E.2d 863 (1995)...0000.... 16 Kimbro v. Pepsico, 215 F.3d 723 (7th Cir. 2000) ....... 18 Lawson v. AK Steel, 121 Ohio App. 3d 251, 699 MINT 0 TIENT F vais caciicdischsdusaperehsisonniriubiianbenesneipicnioniideines 15 Lingle v. Norge Div. of Magic Chef, Inc., 486 Lk Ee OE eT 12,13 Livadas v. Bradshaw, 512 U.S. 107 (1994)............... 11 Minarik v. Nagy, 8 Ohio App.2d 194, 193 Piet Be LN ME. BG Bi vcccviecceincsnccesesecccsveceneers 17 N.L.R.B. v. Master Slack and/or Master Trou- sers Corp., 773 F.2d 77 (6th Cir. 1985)...............0.. 22 Reed v. United Transportation Union, 488 U.S. EERIE ana ener es a RS RRC oa mane ll Teamsters v. Lucas Flour Co., 369 U.S. 95 Ta ies 13 United Paperworkers Int'l Union v. Misco, Inc., Li ss 5 SESE Ne OER ee SO ea 22 United Steelworkers v. American Mfg. Co., 363 i aca a ligeecabendosais 21 vil TABLE OF AUTHORITIES — Continued Page United Steelworkers v. Enterprise Wheel & Car COIR, FES Ue, BG CIGD verve cnesticevesccsivcincetescscsves 21 United Steelworkers v. Warrior and Gulf, 363 Pads SPE SD sind cninnts/skccisensinbnsuisiond dacindeaaaiedlaiasentiueees 21 Valinski v. Edison, 197 Fed. App. 403, 2006 U.S. App. LEXIS 20052 (6th Cir. 2006)................. 19 STATUTES AND RULES INVOLVED ee MUTE eiiiscoriincisoiisiiiaticicicutasii tsnipinniateninadeoiaasniaasiicies 1 BO PE A TEENIE cedsceeinidsicconsapiesiaciiigiceaualeninedncsibewstiakaloinia 1 Be es i itisedicessitesusinnenntenidiesaisbitiblnint eaainaiieles 1 29 U.S.C §185, §301 Labor Management Rela- IIE Sicsdiciucsadiacneaineecbcenihaeeinidcenpnieaclantecndspuss passim 1 STATUTES AND RULES INVOLVED The pertinent statutes and rules are printed in Respondent’s Appendix 1-8. ¢ COUNTERSTATEMENT OF THE CASE On July 20, 2004, Plaintiff filed his initial Com- plaint in state court alleging that he was discharged from Giant Eagle and further claiming defamation and interference with contract resulting from an internal sexual harassment charge filed by Defendant John Brigadier, a minor employee of Defendant Giant Eagle. On August 5, 2004, Craig amended the Com- plaint to name John Brigadier’s parents, David and Sue. Also named as a Defendant was Giant Eagle Human Resources Manager, Jackie Lenson. Pursuant to 28 U.S.C. §§1441, 1446, 28 U.S.C. Section 1331, and 29 U.S.C. §185, Defendants timely removed the case to District Court on the grounds that Plaintiff’s claims were completely preempted under §301 of the Labor Management Relations Act under well estab- lished Supreme Court and Sixth Circuit authority. On September 14, 2004, Plaintiff filed his Motion to Remand. (R. 7). On January 14, 2005, Plaintiff filed a Motion to Proceed with Discovery. (R. 13). Defendants opposed that motion on January 24, 2005, arguing that Craig had not demonstrated how discovery would impact determination of the legal question of complete pre- emption. (R. 14). On May 23, 2005, the District Court 2 entered its Memorandum and Order Denying Plain- tiff’s Motion to Remand the Case, Denying the Mo- tion to Proceed With Discovery, and setting a Case Management cenference for July 15, 2005. (R. 20) (Pet. Suppl. App*: 11-19). Pursuant to Federal Rule of Civil Procedure 26(d), discovery was stayed before the Case Management Planning Meeting. On July 19, 2005, Defendants filed their Motion for Summary Judgment and 2 Motion for Protective Order to Stay Discovery Pend'™g Ruling Upon Their Motion for Summary Judgrent. (R. 25-27). On March 30; 2006, the Court entered its Memo- randum and Orer granting Defendants’ Motion for Summary Judgment and, denying as moot Defen- dants’ Motion fer Protective Order. (R. 50-51) (Pet. Suppl. Appx. 1-:0). The Court ruled that Plaintiff’s claims were completely preempted and that Craig had failed to peve any Union misconduct in repre- senting him, a Necessary predicate for a breach of duty of fair repréSentation case. (Pet. Suppl. Appx. 9). The Court shared its determiration that facts of Craig’s case bear more ‘han a passing resemblance to those in Devoe v. General Motors Corpora- tion, 32 F.31 212, 216 (6th Cir. 1994), and Jones v. Gereral Motors Corp., 939 F.2d 380, 383 (6th Ci: 1991), cases in which the dis- charged pl Union Brief p. 13. App. 64 think that Human Resources could fire him because he never took direction from them. This argument is a red herring. Hulsman, as Manager of Employee Relations, would naturally be involved in termination decisions. Even if Grievant did not understand this apparent reality, he knew or should have known that unacceptable conduct would be reported and acted upon by others. Any confusion on this point was certainly clarified when Hulsman advised Grievant that departure would constitute insubordination, a terminable offense. At that point, her authority to terminate Grievant had been plainly expressed. It follows that Grievant’s claimed ignorance of her authority is incredible on its face and erodes the reliability of his other testimony. The Union argues that Hulsman’s testimony was flawed by inconsistency. It notes she said she claimed to have initiated the meeting because of confidential- ity concerns, though no mention is made of this in her notes. However, Hulsman did not get to finish making her points, so she did not reach the confidentiality issue and had no note to make regarding any discus- sion of confidentiality. The Union also points out that she said she did not check to see whether Grievant was scheduled to work the next day, though her notes indicate she did. This point does not involve the exchange between Grievant and Hulsman. Such a minor inconsistency is not sufficient to demonstrate that Hulsman’s recollection of Crievant’s insubordi- nate departure was unreliable. App. 65 It is telling that Hulsman immediately reported the insubordinate departure both to her superior and the Union. This reaction is consistent with the shock- ing impact of Grievant’s conduct, and with Hulsman’s surprise that Grievant would leave after her explicit warning. There is absolutely no logical or credible explanation for her reaction unless Grievant did walk out without permission. Hulsman was a high ranking administrator in the Company’s organization and a professional in dealing with issues of employee conduct. She had no axe to grind with Grievant and no preexisting bias, having only just met him. She was trying to make him understand why his comment to the minor was inappropriate. It contravenes logic for her to tell him to go when she had not yet been able to get any acknowledgment from Grievant that he understood. If Hulsman had given Grievant permission to leave as he claims, she would have no reason to report him as insubordinate. Indeed, it would be completely illogical and nonsensical to tell an em- ployee to leave, then report him as having been insubordinate for doing so. Taken together, these facts and considerations support the conclusion that Hulsman’s testimony is more reliable than Grievant’s, and should be credited. The Union argues that Grievant did not refuse to perform work. However, he was on the clock and met with Hulsman at the Company’s expense. His work at that point was to meet with Hulsman, explain his App. 66 concerns and come to a better understanding of the Company’s approach to employee complaints. The business purpose was to improve his understanding of complaint handling and investigation as well as his sense of workplace propriety. Grievant refused to perform this work. By leaving despite an explicit instruction, Griev- ant knowingly, willfully and deliberately refused to obey Hulsman’s instruction. Her order was explicit and clear so that Grievant understood he was being instructed to stay. The orcer was reasonable and work related. Hulsman was trying to explain why Grievant’s conduct was of concern, and he had given no indication of understanding. The order was given by someone with appropriate authority, as Hulsman was an administrator in Human Resources. She made it clear that if he left he would be committing a terminable offense. Despite the clarity of the warn- ing, he consciously put his employment at risk. Hulsman’s warning gave Grievant an adequate opportunity to correct his insubordinate behavior. It was his decision to walk out the door after her warn- ing. The evidence has established all the elements of insubordination and satisfies the Employees burden of proof. The Union maintains that insubordination was treated casually at Giant Eagle, and Grievant was the victim of disparate treatment. However, many of the examples offered to support this allegation were of employees failing or refusing to follow Grievant's orders aS manager in charge. These examples are App. 67 inapposite because they do not involve refusals to follow orders from a manager or supervisor. There is no insubordination unless the order comes from a superior. Grievant was not his co-workers’ supervisor when they balked at his direction. The other exam- ples offered were of failures to follow instructions, and did not entail the willful, deliberate defiance of managerial authority evident in Grievant’s case. The evidence therefore fails to demonstrate disparate treatment. More likely than not, Grievant left Hulsman’s office after being told that the meeting was not over and that departure would constitute insubordination, a termination offense. His attitude at the time was not one of listening to Hulsman, or properly respect- ing her. Rather, he accused her of simply reiterating policy to him and described the meeting as useless when she was explaining the Company’s need to investigate complaints. The concept of just cause functions to protect the employment relationship where progressive discipline can be instrumental in helping the employee to assimilate and meet the employer’s reasonable expec- tations. The evidence in this case gives no indication whatsoever that Grievant could or would benefit from progressive discipline. He has not heeded any warn- ing given by either Lenson or Hulsman. He has not so much as acknowledged any suggestion that he modify his behavior. At every turn he has turned a deaf ear to any critique of his conduct on the job. The App. 68 Arbitrator is persuaded that progressive discipline would be of no use in Grievant’s case. The Union asserts Grievant’s due process rights were violated because there was no full and fair investigation. However, the insubordination here concerned was directed at the Manager of Employee Relations, that is, the person with responsibility for reviewing termination decisions. In such a situation, there is no need for further investigation and review.” Even so, Hulsman immediately apprised her superior of the situation. The Union strongly argues that discharge is too severe a penalty in this case because there were no threats, abusive language, violence, refusal to work or other observers. Certainly, the penalty in a just cause analysis must be proportionate to the seriousness of the offense. Direct insubordination to a manager is extremely serious when it utterly prevents the Com- pany from carrying on its business. In this case, when Grievant walked out, Hulsman was completely blocked from finishing her business of counseling him. His departure was in the face of a specific warn- ing that discharge would be the likely consequence. Hence, Grievant’s departure was an act of defiance and a direct challenge to Hulsman’s authority. As such, it was very serious in nature. Grievant’s record of employment, though initially good, is not long enough to constitute a mitigating circumstance. * Ermanco, Inc., supra n.3. App. 69 The Union has vigorously mounted a highly competent and thorough challenge to Grievant’s termination. The case, however, turns on a credibility determination. The Arbitrator has carefully observed witness demeanor at hearing and evaluated testi- mony, and finds Hulsman to be the more credible witness. AWARD Grievant Matthew Craig was discharged for just cause under the collective bargaining agreement. The grievances are denied. Respectfully Submitted, /s/ Patricia T. Bittel Patricia Thomas Bittel, Arbitrator Dated: June 22, 2005 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1610%3A3. Public record. Not legal advice.