Appendix — Britt v. Grocers Supply Co.

[ Royrene Cour, US

aR 1? 1993

; ‘

——————

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

RICHARD L. BRITT AND TIMOTHY

JACKSON, JR. ET AL,

Petitioners,

V.

THE GROCERS SUPPLY COMPANY,

Krespondent.

On Writ Of Certiorari To

The United States Court Of Appeals

For The Fifth Circuit

SUPPLEMENTAL APPENDIX

TO PETITION FOR WRIT OF CERTIORARI

JAMES M. MABRY

6200 Richmond Ave.

Suite 103

Houston, Texas 77057

Phone (713) 871-1330

MNrorney for Petitioners

Alpha Law Bnet Co. ¢ 6113 Aletha Lane * Houston, Texas 77081 (713)981-9000

i

TABLE OF CONTENTS

SUPT LAIN LA ARERR DD oe eee ee la

SUPPEAIMEIN LAL APPERAn ©. 20. cee ees 29a

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

RICHARD L. BRITT AND TIMOTHY

JACKSON, JR. ET AL,

Petitioner,

Vv.

THE GROCERS SUPPLY COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

SUPPLEMENTAL APPENDIX

TO PETITION FOR WRIT OF CERTIORARI

Now come Petitioners and through the undersigned

file this Supplemental Appendix to the Original Petition for

Certiorari heretofore filed on March 15, 1993. Submitted

herewith as Appendix "B" is the opinion of the Fifth Circuit

Court of Appeals entered on December 15, 1992, which

decision is sought to be reviewed and Appendix "C" which

is the opinion of the District Court for the Southern District

of Texas originally granting summary judgment in favor of

Defendant and against Plaintiffs.

2

Respectfully submitted,

JAMES M. MABRY

6200 Richmond Ave.

Suite 103

Houston, Texas 77057-6222

Phone (713) 871-1330

Counsel for Petitioners

aa

la

SUPPLEMENTAL

APPENDIX B

Richard L. BRITT and Timothy Jackson,

Jr., et al., Plaintiffs-Appellants,

V.

The GROCERS SUPPLY COMPANY,

INC., Defendants-Appellee.

James E. HAMILTON, et al.,

Plaintiffs-Appellants,

The GROCERS SUPPLY COMPANY,

INC., Defendant-Appellee.

Nos. 91-2493, 91-6043.

United States Court of Appeals,

Fifth Circuit.

Dec. 15, 1992.

Striking employees replaced by allegedly younger

workers brought age discrimination action and claim that

employer had breached contract in replacing workers. The

United States District Court for the Southern District of

Texas, Lynn N. Hughes, J., 760 F.Supp. 606, entered

judgment for employer. Appeal was taken. The Court of

Appeals, Duhé, Circuit Judge, held that: (1) Age

Discrimination in Employment Act was not preempted by

National Labor Relations Act; (2) employees had not

established violation of Age Discrimination in Employment

a

2a

Act, to degree sufficient to survive summary judgment; and

(3) employer’s actions did not constitute violation of labor

contract.

Affirmed.

1. Federal Courts 666

All employees bringing age discrimination claim

against employer were included in an appeal from adverse

decision of district court, even though they were not

individually identified in notice of appeal; notice stated that

it covered all plaintiffs who had filed their written consent to

be included in lawsuit. F.R.A.P. Rule 3(c), 28 U.S.C.A.;

Fair Labor Standards Act of 1938, § 16(b), 29 U.S.C.A. &§

216(b).

2. Civil Rights 332

The Age Discrimination in Employment Act was

exclusive remedy for age discrimination claims, and was not

preempted by National Labor Relations Act. National Labor

Relations Act, §§ 1-303, as amended, 29 U.S.C.A. §§ I51-

187; Age Discrimination in Employment Act of 1967, §§ 2-

17, as amended, 29 U.S.C.A. §§ 621-634.

a Civil Rights 380

Once an age discrimination claimant establishes prima

facie case, presumption of discrimination is established and

burden of production shifts to employer to rebut presumption

by articulating legitimate, nondiscriminatory reason for its

disparate treatment of claimant, following which claimant

must prove defendant’s reasons are pretexts for unlawful

discrimination either by showing discriminatory reason more

likely motivated employer or employer's reason is unworthy

3a

of credence. Age Discrimination in Employment Act of

1967, §§ 2-17, as amended, 29 U.S.C.A. §§ 621-634.

4. Civil Rights 389

Assuming that striking workers at food handling

facility had established prima facie case of age discrimination

in connection with employer’s response to a strike, they

failed to establish fact issue as to whether the employer’s

reasons for hiring temporary employees as permanent

employees, gratitude, departure of these employees to take

other jobs, and striker misconduct, were pretexts masking

age discrimination; reliance upon stray remarks that replaced

workers were "older" and fact that replaced workers had

higher salaries and more seniority, were not sufficient. Age

Discrimination in Employment Act of 1967, §§ 2-17, as

amended, 29 U.S.C.A. §§ 621-634.

3. Labor Relations 264

Employer did not breach contract with union,

allegedly calling for rehiring of striking employers if they

immediately agreed to cease strike, by engaging in selective

reemployment of striking workers; there was no evidence

that union had ever accepted employer’s offer to so rehire,

and union subsequently agreed to an unconditional return to

work. Labor Management Relations Act, 1947, § 301, 29

U.S.C.A. §185.

6. Labor Relations 416.5

Striking employees were precluded from claiming that

employer had breached a recall agreement, by failure to

follow binding arbitration provisions in collective bargaining

agreement. Labor Management Relations Act, 1947, § 301,

29 U.S.C.A § 185.

4a

: Damages 50.10

States 18.15

Torts 6

State law causes of action of duress and intentional

infliction of emotional distress, based upon alleged violation

of contract between employer and union governing the recall

of striking workers, was not preempted by the National

Labor Relations Act. National Labor Relations Act, §§ 1-

303, as amended, 29 U.S.C.A. §§ 151-187.

8. Damages 50.10

States 18.15

Torts 6

State law claims of duress and intentional infliction of

emotional distress, arising out of an employer’s failure to

recall striking employees due to age discrimination, were not

preempted by the Age Discrimination in Employment Act.

Age Discrimination in Employment Act of 1967, §§ 2-17, as

amended, 29 U.S.C.A. §§ 621-634.

9. Torts 6

Employer did not commit state law tort of duress by

declining to restore all striking workers to their previous

positions; employer was merely insisting on its legal right in

a permissible way.

10. Damages 50.10

Employer did not commit state law tort of intentional

infliction of emotional distress by declining to restore all

Striking workers to their previous positions; employer was

merely insisting on its legal rights in permissible way.

Sa

Appeals from the United States District Court for the

Southern District of Texas.

Before REAVLEY, HIGGINBOTHAM, and DUHE,

Circuit Judges.

DUHE, Circuit Judge:

These two cases were consolidated on appeal, but

tried separately. Both suits were brought by groups of

former employees of Grocers Supply Company. The Britt

plaintiffs appeal the district court’s holding that the National

Labor Relations Act, 29 U.S.C. § I51 - 187 (1988),

preempts claims of age discrimination asserted under the Age

Discrimination in Employment Act, 29 U.S.C. § 621-634

(1988). They also appeal the district court’s granting

summary judgment on the merits of their age discrimination

claims. 760 F.S. 606. The Hamilton plaintiffs appeal the

district court’s granting a directed verdict in favor of the

defendants on the plaintiff’s age discrimination claims. They

also appeal the district court’s granting summary judgment

on their claims of breach of contract and intentional infliction

of emotional distress and duress. The defendant, Grocers

Supply, argues that the Britt plaintiffs’ notice of appeal is

insufficient under Rule 3(c) of the Federal Rules of Appellate

Procedure. We find that the Age Discrimination in

Employment Act (ADEA) controls this litigation and not the

National Labor Relation Act (NLRA) and that notice of

appeal by the Britt plaintiffs was sufficient under Rule 3(c)

and its interpretation in Torres vy. Oakland Scavenger Co.,

487 U.S. 312, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988).

Additionally, we find no error in the summary judgment in

the Britt case, nor do we find error in the directed verdict or

summary judgment in the Hamilton case. In sum, we

disagree with the district court on the preemption issue but

affirm its judgment.

6a

STATEMENT OF FACTS

The underlying facts in both cases are the same. In

December 1986, the work force of Grocers Supply

Company, a Texas Corporation, went on strike after contract

negotiations broke down. The work force consisted

primarily of employees over forth years old. Grocers Supply

immediately hired replacement workers to continue its

operations. The replacement workers were told that their

positions were temporary; sometime before the end of the

strike, however, Grocers offered them permanent positions.

Negotiations failed, and in April 1987, the striking workers

made an unconditional offer to return to work. The Union

explained to the workers that they could return to work only

when Grocers needed them. In fact, Grocers and the Union

negotiated a "recall" agreement to govern the order of recall

as vacancies occurred. The Hamilton plaintiffs contend that

this offer to return to work was made in response to a

promise by Grocers that if the workers would return

unconditionally, they would all be rehired within a few

weeks.

Very few of the former workers were ever recalled.

Grocers maintains that it simply had a few hiring needs

during this period due to the low turnover and increased

productivity of its new workers. The Plaintiffs assert that

the slow rehiring and the undesirability of those jobs offered

was purposefully orchestrated to reduce the age of the work

force and to encourage older workers to retire and take their

retirement benefits.

Two groups of workers sued Grocers as a result of

their failure to be recalled. Richard L. Britt and Timothy

Jackson, Jr., individually and on behalf of others similarly

7a

situated, with 126 additional plaintiffs opting in,' assert

only a ADEA claim. They contend that their "permanent

replacement" was a sham and that they were refused

reinstatement because of their age. The district court granted

summary judgment on this claim based on two grounds.

First, the court held that the ADEA claim was preempted by

the NLRA. Second, the district court held that Britt failed

to demonstrate a genuine issue of material fact on the

discrimination claim sufficient to survive judgment.

James E. Hamilton, et al. assert an ADEA claim, a

29 U.S.C. § 301 breach-of-contract claim, and state law

claims of intentional infliction of emotional distress and

duress. The district court granted summary judgement for

Grocers on both the § 301 contract claim and the state law

claims. The ADEA claim went to trial, but the district court

directed a verdict for Grocers at the close of Hamilton's

evidence.

DISCUSSION

I. Notice of Appeal.

[1] Before addressing other issues, we must

address whether the Notice of Appeal for the Britt plaintiffs

is Sufficient. Grocers contends that the notice is insufficient

to satisfy the specificity requirement under Federal Rule of

Appellate Procedure 3(c) and its interpretation under Torres

v. Oakland Scavenger Co., 487 U.S. 312, 108 S. Ct 2405,

101 L. Ed. 2cd 285 (1988).

Rule 3(c) provides that a notice of appeal "shall

specif, the party or parties taking the appeal." In Torres,

1. For simplicity purposes, the plaintiffs in each case will be

referred by the named individual plaintiffs, Britt and Hamiiton.

8a

the Supreme Court interpreted FRAP 3(c) strictly and held

that the designation "er al." in the notice of appeal rather

_ than the name of the appealing party resulted in a failure of

that party to appeal, thus depriving the appellate court of

jurisdiction.

"The purpose of the specificity requirement of Rule

3(c) 1s to provide notice both to the opposition and to the

court of the identity of the appellant or appellants." Torres,

487 U.S. at 318, 108 S.Ct. at 2409. The problem facing the

Supreme Court in Torres was that the use of ef al., with

nothing further, left it uncertain which parties were taking

the appeal. The Court held that thus designating the

appealing parties "would leave the appellee and the court

unable to determine with certitude whether a losing party not

named in the notice of appeal should be bound by an adverse

judgment. "/d. The Court, however, went on to state that

the specificity requirement of Rule 3(c) may be met "by

some designation that gives fair notice of the specific

individual or entity seeking to appeal." /d.

The plaintiffs in the Britt case consist of the original

named plaintiffs, Richard Britt and Timothy Jackson, and

another 126 optin plaintiffs under 29 U.S.C. § 216(b). The

Notice of Appeal was styled "Richard L. Britt and Timothy

Jackson, Jr., et al." The body of the notice, however,

identified the remaining appellants as “all other 129

consenting Plaintiffs who have previously filed their written

consent persuant to 29 U.S.C. Section 216(b)."* Because

the notice in this case states that all of a particular defined

2. Grocers also argues that the notice is uncertain because it refers

to 129 opt-in plaintiffs and in reality only 126 persons had opted into the

action. Apparently, the 129 was a typographical error. This argument

is without merit. If "all 129" were appealing , it follows that the 126

plaintiffs that Grocers was aware of were all appealing.

——————————————————OOOoO3S~§

9a

group are taking an appeal, and the individual identities are

readily ascertainable in the record, the specificity

requirement is satisfied. Such a designation is sufficient to

give fair notice of the individuals appealing.

The cases relied on by Grocers involve situations in

which the unnamed appellants could be included only if the

term "et al.", with nothing further, was considered specific

enough to satisfy Rule 3(c). The Notice of Appeal in this

case is distinguishable. The plaintiffs, other than the two

named plaintiffs, were clearly identified as those parties

"who filed their written consent" as required by Section

216(b). Their identities are in the record. Rule 3(c) does

not require that all the plaintiffs be identified by given and

surname in the notice of appeal. This Court has stated that

it "has looked to the purpose rather than the letter of Rule

3(c)’s specificity requirement" when determining the

sufficiency of a notice of appeal. Brotherhood of Ry.

Carmen v. Atchison T. & S.F.Ry., 894 F.2d 1463, 1465 n.

3(5th Cir.), cert. denied — U.S. —, 111 S.Ct. 131, 112

L.Ed.2d 99 (1990).

Additionally, this Court has recognized that in some

circumstances even the designation "et al." is sufficient to

identify the parties. In Pope v. Mississippi Real Estate

Commission, 872 F.2d 127, 129 (Sth Cir. 1989), this Court

held that the use of "et al." is sufficient if there are only to

parties to the suit. Thus, it is not necessary to list the names

of each appealing party, as long as there can be no mistake

about which parties are intending to appeal. If papers are

filed in a fashion that is technically at variance with the letter

of a procedural rule, a court may nonetheless find that the

litigant has complied with the rule if the litigant’s action is

the functional equivalent of what the rule requires. See

Torres, 487 U.S. at 317, 108 S.Ct. at 2408; see also

Houston v. Lack, 487 U.S. 266, 273-75, 108 S.Ct. 2379,

10a

2383-84, 101 L.Ed.2d 245 (1988). Unlike the defendant in

Torres, Grocers had fair notice of the identity of the

Appellants. Consequently, its argument that this Court lacks

jurisdiction over Britt’s appeal must fail.

II. The Preemption Issue.

[2] Turning to the question whether this Court has

jurisdiction over the age discrimination claims, we hold that

this Court does have jurisdiction to hear the claims asserted

under the Age Discrimination in Employment Act (ADEA).°

More specifically, we hold that, to the extent the age

discrimination claims encompass conduct that is arguably

covered by the National Labor Relations Act, the ADEA

governs the prosecution of those claims and not the NLRA.

The issue of the jurisdiction of this Court was raised

on appeal in the Britt case. Although not raised by the

Hamilton plaintiffs, it is our duty to determine, sua sponte,

if necessary, whether we have jurisdiction over any case

before us. Griffith v. Johnston, 899 F.2d 1427, 1429 (Sth

Cir. 1990), cert. denied, — U.S. —, 111 S.Ct. 712, 112

L.Ed.2d 701 (1991); Morales v. Pan American Life Ins.

Co., 914 F.2d 83 (Sth Cir. 1990). Therefore, our decision

: on this issue affects the disposition of both cases on this

appeal.

A, Preemption Analysis

Whether the NLRA preempts the ADEA, or vice

versa, iS an issue of first impression before this court. The

district court in the Britt case determined, in a summary

judgment proceeding, that the plaintiffs’ ADEA claims were

3. If the NLRA preempts the ADEA, then primary jurisdiction of

this dispute lies with the NLRB and not the courts.

lla

preempted by the NLRA. The court alternatively held that,

on the merits of the ADEA claim, the plaintiffs failed to

establish a genuine issue of fact and granted the defendant’s

motion for summary judgment. The defendants in the

Hamilton case also argued that the NLRA preempted the

ADEA; however, the district court overruled this argument

without explanation. The plaintiffs later lost on the ADEA

claims by a directed verdict.

The district court in Britt, in determining that the

NLRA preempted the ADEA, relied on Sears, Roebuck &

Co. v. San Diego County District Council of Carpenters, 436

U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978). We

believe, however, that such reliance is misplaced.

Morcover, Grocers’ application of the preemption doctrine

in its argument on appeal is also flawed.

The preemption doctrine in labor law has evolved for

more than three decades around a conceptual core with

various appendages.* An initial line of preemption analysis,

developed in San Diego Building Trades Council v. Garmon’

and its progeny, was based predominantly on the primary

jurisdiction of the National Labor Relations Board (NLRB).

A second line of analysis also developed in cases "focusing

upon the crucial inquiry whether Congress intended that the

conduct involved be unregulated because [it has been] left ‘to

4. See 2 Charles J. Morris, The Developing Labor Law 1504-1598

(2d ed. 1983); Charles J. Morris, The Developing Labor Law; 1982-

1988, 650-690 (2d ed. Supp. V 1989).

5. 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). This type

of preemption is called “"Garmon" preemption.

12a

be controlled by the free play of economic forces.’"° The

resulting preemption doctrine reflects the Supreme Court’s

efforts to accommodate conflicting regulatory schemes

without the need to take a strictly mechanistic approach to

the discrete problems involved.

The preemption doctrine is anchored in_ the

Supremacy Clause of the Constitution. In determining the

areas of labor law in which the states have overstepped their

bounds, the Supreme court has focused on Congress’ actual

regulation of labor relations rather than Congress’ potential

power to regulate in this area.

Since the enactment of the NLRA, the Supreme Court

has justified the results of its preemption decisions in terms

of perceived congressional intent to preempt, although the

Act provides no specific guidance for applying this principle

in individual instances of regulatory conflict. As the theory

of preemption has evolved, the more recent cases reflect the

difficulty of discerning congressional intent and instead

appear to have been decided upon considerations of labor

relations policy. See Windfield v. Groen Div., Dover Cerp.,

890 F.2d 764, 766-68 (Sth Cir. 1989).

As stated in Windfield, the courts have carved out

several significant exceptions to the preemption doctrine.

One such exception is the "collateral issue" exception. In

Connell Construction Co. v. Plumbers & Steamfitters Local

Union No. 100, 421 U.S. 616, 626, 95 S.Ct. 1830, 1836, 44

6. Lodge 76, International Ass'n of Machinists & Aerospace

Workers, v. Wisconsin Employment Relations Comm’n, 427 U.S. 132,

140, 96 S.Ct. 2548, 2553, 49 L.Ed.2d 396 (1976). This type of

preemption is sometimes called "Machinist" preemption.

13a

L.Ed.2d 418 (1975), the Court held that a federal antitrust

law was not preempted by the NLRA under the collateral

issue exception. Under Garmon, however State antitrust law

was preempted. The Court held that "the federal courts may

decide labor law questions that emerge as collateral issues in

suits brought under independent federal remedies." /d. at

626, 95 S.Ct. at 1837. As an independent federal remedy,

the ADEA falls under this exception.’ — Traditional

preemption analysis, however, is still not quite satisfactory.

B. Preemption and Conflicts

between Federal Statutes

Because the root of the preemption doctrine lies in the

tension between federal and state regulation of labor

relations, the analysis of the tension between two conflicting

federal statutes is somewhat different. A number of cases

reflect this awareness.* In United States v. Boffa 688 F.2d

7. Although the Court calls this an exception to the preemption

doctrine, the analysis is more comparable to that of Hood v. Smith’s

Transfer Corp., 762 S.Supp. 1274 (W.D.Ky. 1991), discussed infra,

which candidly recognized that the preemption doctrine does not apply in

situations where two federal statutes conflict.

8. In United States v. International Brotherhood of Teamsters, 948

F.2d 98 (2d Cir. 1991), vacated sub nom. Yellow Freight Systems, Inc.

v. United States, — U.S. —, 113 S.Ct. 31, —— L.Ed.2d — (1992)

(No. 91-1938), the court determined that the district court was entitled to

exercise jurisdiction Over the parties pursuant to the All Writs Act, 28

U.S.C. § 1651 (1988), and was not preempted from that jurisdiction by

the authority of the NLRB to determine issues concerning unfair labor

practices under the NLRA. The following excerpt illustrates the

inapplicability of the traditional preemption analysis when two federal

statutes are involved.

[Appellant] contends that the conduct at issue

14a

in this case is directly regulated by sections 7 and

8(a)(1) of the NLRB. . . and accordingly that the

| NLRB has exclusive jurisdiction with respect to it. In

| this connection, San Diego Building Trades Council v.

Garmon, . . . a case involving attempted state

regulation of conduct constituting an NLRA unfair labor

practice, stated that "[W]hen an activity is arguably

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

as the federal courts must defer to the exclusive

competence of the [NLRB], if the danger of state

interference with national policy is to be averted." . .

This rule, however, is not uniformly applied

even as to state regulation. See, e.g., Sears Roebuck &

Co. v. San Diego County Council of Carpenters...

(enforcement of state trespass laws by state court

allowed as to “picketing which is arguably-but not

definitely-prohibited or protected by federal law")

Furthermore, where federal law and policies other than

the NLRB are implicated, the Garmon rule is frequently

considered inapplicable. See, e.g., Breininger v. Sheet

Metal Workers Int’l Ass'n Local Union No. 6, 493 U.S.

67, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989) ...(district

court had jurisdiction to hear fair representation claim

although union’s breach of duty of fair representation

might violate § 8(b) of the NLRA); /nternational Bhd.

of Boilermakers v. Hardeman, 401 U.S. 233, 237-39,

91 S.Ct. 609, 612-13, 28 L.Ed.2d 10 (1971)(district

court had jurisdiction to hear claim that unlawful

expulsion from union violated § 101(a)(S) of Labor-

Management Reporting and Disclosure Act ... although

expulsion was arguably an unfair practice violative of

§§ 8(b)(1)(A) and 8(b)(2) of NLRA); ... United States

v. Boffa, 688 F.2d 919, 931 (3d Cir. 1982) (in RICO

prosecution alleging mail fraud predicates and

substantive mail fraud violations, prohibitions of

defendants’ conduct by § 8 of the NLRA would not

preclude “enforcement of a federal statute that

independently proscribes that conduct"). cert. denied,

460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494

15a

919 (3d Cir. 1982), cert. denied, 460 U.S. 1022, 103 S.Ct.

1272, 75 F.Ed.2d 494 (1983), the issue was whether the

doctrine of primary jurisdiction operated to displace a federal

criminal statute that independently prohibited conduct that is

also arguably prohibited by the NLRA. In rejecting

preemption by the NLRA, the court stated "the doctrine of

primary NLRB jurisdiction is of constitutional dimension; it

is grounded, at least in part, upon considerations of federal

supremacy . . . . No such constitutional concerns are

implicated when a federal criminal statute is said to impinge

upon the primary jurisdiction of the NLRB." /d. at 932.

Hood v. Smith’s Transfer Corp., 762 F.Supp. 1274

(W.D.Ky. 1991), provides the most comprehensive

discussion of the preemption doctrine and its relation (or lack

thereof) to the analysis of two conflicting federal statutes. In

holding that the preemption doctrine has no application when

two federal statutes conflict, the court determined that the

ultimate resolution of the issue depended upon whether: "(1)

the unfair labor practices alleged by defendants are merely

collateral to plaintiffs’ non-NLRA federal claims and (2)

plaintiffs’ non-NLRA federal claims arise under statutes

which provide independent federal remedies." Jd. at 1283.

In the case we are considering the plaintiffs’ non-NLRA

federal claims arise under the ADEA which provides an

independent federal remedy.

(1983). Here, although the appointed officials are

directly applying the NLRA rather than some separate

body of law, considerations that we have previously

recognized with respect to the Consent Decree argue

compellingly for a ruling against exclusive NLRB

jurisdiction. /d. at 105 (emphasis added) (some

citations omitted).

ne

l6a

Additionally, we have held that claims under Title VII

are not preempted by the NLRA” These cases hold that a

remedy is available under both the NLRA and Title VII and

recognize concurrent jurisdiction between Title VII and the

NLRA."

As evidence by the discussion above, traditional

preemption analysis does not apply in a conflict between two

federal statutes.

ie Hobbs v. Hawkins

The most recent case in this Circuit to apply the

preemption doctrine is Hobbs v. Hawkins, 968 F.2¢ 471 (Sth

Cir. 1992). The analysis in Hobbs, however, is inapplicable

in this case. This decision holds that a claim under 42

9. We have recognized that Title VII and the NLRA are statutes with

separate and independent remedies. See Guerra v. Manchester Terminal

Corp., 498 F.2d 641, 658 (Sth Cir. 1974), overruled on other grounds

by Bhandari v. First Nat’l Bank of Commerce, 829 F.2d 1343 (Sth Cir.

1987), vacated 492 U.S. 901, 109 S.Ct. 3207, 106 L.Ed.2d 558 (1989),

reinstated on remand, 887 F.2d 609 (Sth Cir. 1989), cert. denied, 494

U.S. 1061, 110 S. Ct. 1539, 108 L.Ed.2d 778 (1990). The Guerra panel

noted that

through Title VII and the NLRA may overlay in the

area of employment discrimination, their confluence

must not be exaggerated .... [A] plaintiff does not lose

his right to an adjudication regarding the causes of

action created by Title VII ... simply because the

conduct of which he complains also offends section 8 of

the NLRA.

Guerra, 498 F.2d at 658 n. 46.

10. Guerra, 498 F.2d at 651 n. 20, and cases cited therein. Because

of the cases holding that the ADEA is the exclusive remedy for age

discrimination claims and those cases rejecting an analogy between Title

VII and the ADEA, we decline to hold that the courts under the ADEA

and the NLRB have concurrent jurisdiction over these claims.

17a

U.S.C. § 1983 is preempted by the NLRA. Hobbs employs

traditional preemption analysis which considers the

relationship between federal and state regulation of labor

relations rather than addresses the problems involved with

conflicting federal statutes. Hobbs is unique, however,

because the plaintiff's claims arose specifically under the

NLRA (§ 7, § 8, and § 9), and were asserted as such. The

plaintiff merely tried to enforce these NLRA claims through

§ 1983.

Section 1983 does not create substantive rights, but

was designed to provide a remedy for violations of other

Statutory as well as constitutiona! rights. Many cases hold

that, where Congress has enacted a statute that covers a

specific substantive area providing specific remedies, a cause

of action under § 1983 is foreclosed. In the case at hand, the

ADEA covers a specific substantive area of the law and

provides a specific remedy for violations of the statute. As

a result, a number of cases also hold that an age

discrimination claim brought under §1983 is preempted by

the ADEA. Therefore, contrary to Grocers’ assertions, the

analysis in Hobbs does not control in this case.

D. The Exclusivity of the ADEA

Finally, a decision that the NLRA preempts the

ADEA cannot be reconciled with the many cases holding that

the ADEA is the exclusive remedy for age discrimination

claims. See White v. Frank, 718 F.Supp. 592, 595

(W.D.Tex 1989), aff'd, 895 F.2d 243, (Sth Cir. 1990), cert.

denied, —— U.S. —, 111 S.Ct. 232, 112 L.Ed.2d 192

(1990); Paterson v. Weinberger, 644 F.2d 521, 524-25 (Sth

Cir. 1981); Zombro v. Baltimore City Police Dep’t, 868 F.2d

1364, 1369 (4th Cir. 1989), cert. denied, 493 U.S. 850, 110

S. Ct. 147, 107 L.Ed.2d 106 (1989); Ray v. Nimmo, 704

F.2d 1480, 1485 (11th Cir. 1983); Ring v. Crisp County

18a

Hosp. Auth. 652 F.Supp. 477, 482 (M.D.Ga. 1987); Dodson

v. U.S. Army Fin. & Accounting Ctr., 636 F.Supp. 894

(S.D.Ind. 1986); Morgan v. Humboldt County School Dist.

623 F.Supp. 440 (D.C.Nev. 1985); Tranello v. Frey, 758

F.Supp. 841 (W.D.N.Y. 1991), aff'd, 962 F.2d 244 (2d Cir.

1992), petition for cert. filed, 61 U.S.L.W. 3356 (U.S. Sept.

29, 1992) (No. 92-704). This has been the holding in cases

of both federal employment and non-federal employment.

Additionally, all of these cases hold that the ADEA preempts

another federal statute.

In analyzing, whether the ADEA preempted § 1983,

the court in Ring v. Crisp County Hospital Authority, supra,

articulates the general rule: a precisely drawn, detailed

statute preempts more general remedies. Because of the

comprehensive statutory scheme set out under the ADEA and

the lack of any legislative history indicating a contrary

congressional intent, the Ring court concluded that the

ADEA is the exclusive remedy for age discrimination. The

court rejected an analogy to Title VII which has been held to

allow an individual to pursue independently his rights under

both Title VII and other applicable state and federal statutes.

The court found that unlike Title VII, nothing in the

legislative history of the ADEA indicated that Congress did

not intend the ADEA to be the exclusive remedy. "By

establishing the ADEA’s comprehensive scheme for the

resolution of employee complaints of age discrimination,

Congress clearly intended that all claims of age

discrimination be limited to the rights and procedures

authorized by the ADEA." Ring, 652 F.Supp. at 482. The

court concluded that the ADEA provided the exclusive

remedy for claims of age discrimination, whether those

claims are founded on the Constitution or on rights created

by the ADEA. We agree.

19a

In a similar analysis, the Fourth Circuit in Zombro vy.

Baltimore City Police Dept. noted that "[t]he text and context

of the ADEA itself confirm this conclusion [that ADEA is

exclusive remedy]: "The provisions of this chapter shall be

enforced in accordance with the powers, remedies, and

procedures, provided in sections 211(b), 216 ...’ 29 U.S.C.

§ 626(b). Section 216 is a part of the Fair Labor Standard

Act (FLSA) ..., and it has been held that the Statutory

remedy of that section is the sole remedy available to the

employee for enforcement of whatever rights he may have

under the FLSA." 868 F.2d at 1369 (citing Lerwill v.

Inflight Motion Pictures, Inc. , 343 F.Supp 1027 (N.D.Cal.

1972)). The court concluded that the provisions of the

ADEA evidence congressional intent to subject all age

discrimination claims to the comprehensive Statutory scheme

clearly embodied in the language and legislative history of

the ADEA.

In discussing the procedural requirement of the

ADEA, one federal district court stated:

The inescapable conclusion that is drawn from

the foregoing is that if other modes of

enforcement were available to the private

litigant, the congressional scheme behind

ADEA enforcement could easily be thwarted.

An impatient plaintiff might unilaterally

dispense with the informal negotiations

contemplated by Congress, needlessly casting

all concerned into costly litigation. Congress

did not intend to allow a plaintiff to bypass

the statutory scheme clearly embodied in the

language of the ADEA. The only reasonable

construction of the Act is that the statute’s

remedy is exclusive.

20a

McCroan v. Bailey, 543 F.Supp. 1201, 1209 (S.D.Ga.

1982). In sum, based on (1) the above cases holding that the

ADEA is the exclusive remedy for age discrimination claims,

(2) the cases holding that traditional preemption analysis does

not apply when two federal statutes conflict, and (3) the

inapplicability of extending the federal/state policy

considerations guiding traditional preemption analysis to

conflicts between federal statutes, we conclude that Congress

intended the ADEA to be the exclusive remedy for age

discrimination claims. Accordingly, we disagree with the

district court’s holding that the ADEA is preempted by the

NLRA, and conclude that this Court has jurisdiction under

the ADEA to entertain the plaintiffs’ age discrimination

claims.

Ill. © Summary Judgment on Britt’s ADEA Claims

and Directed Verdict on Hamilton’s ADEA

Claims.

Having determined that this Court has jurisdiction

over the age discrimination claims, we review both the

district court’s granting of summary judgment in Grocers’

favor on Britt’s claims and the district court’s directing a

verdict in Grocers’ favor on Hamilton’s claims. After

reviewing the merits of the claims, we affirm the respective

decisions of the district courts.

Summary judgment is appropriate if the record

discloses "that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a

matter of law." Fed.R.Civ.P. S56(c). In reviewing the

summary judgment, we apply the same standard of review as

did the district court. Waliman v. International Paper Co. ,

875 F.2d 468, 474 (Sth Cir. 1989); Moore v. Mississippi

Valley State Univ., 871 F.2d 545, 548 (Sth Cir. 1989). The

pleadings, depositions, admissions, and answers to

2la

interrogatories, together with affidavits, must demonstrate

that no genuine issue of material fact remains. Celotex

Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d

265 (1986). To that end we must "review the facts drawing

all inferences most favorable to the party opposing the

motion." Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d

577, 578 (Sth Cir. 1986). Finally, as the Supreme Court

stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106

S.Ct. 2505, 91 L.Ed.2d 202 (1986), “there is no issue for

trial unless there is sufficient evidence favoring the non-

moving party for a jury to return a verdict for that party. If

the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted." /d. at 256,

106 S.Ct. at 2514 (citations omitted). The Court also held

that the standard of review for a directed verdict is the same

as that for review of a summary judgment. Jd. at 250, 106

S.Ct. at 2511.

In addition, a reviewing court is not limited to the

district court’s reasons in affirming a grant of summary

judgment. This Court may affirm on grounds other than

those relied upon by the district court when the record

contains an adequate and independent basis for that result.

Guthrie v. Tifco Indus. 941 F.2d 374, 379 (Sth Cir. 1991),

cert. denied, — U.S. — , 112 S.Ct. 1267, 117 L.Ed.2d

495 (1992): Schuster vy. Martin, 861 F.2d 1369, 1371 (Sth

Cir. 1988).

When no direct evidence of age discrimination exists.

the evidentiary procedure generally adapted to the ADEA

context is that announced by the Supreme Court in

McDonneil Douglas Corp. v. Green, 411 U.S. 792, 802, 93

S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). See Bienkowski

v. American Airlines, 851 F.2d 1503 (Sth Cir. 1988).

Initially, the plaintiff must prove a prima facie case of age

discrimination. The elements of a prima facie case are hotly

22a

disputed in these two cases.'' The elements of a prima

facie case may be somewhat flexible in an ADEA case

according to the facts in issue. McCorstin v. United States

Steel Corp., 621 F.2d 749 (Sth Cir. 1980). Because we

affirm the district courts on an alternative basis, it 1s

unnecessary to resolve the issue of what the proper elements

of a prima facie case should be.

[3] If the plaintiff proves his prima facie case, a

presumption of discrimination is established. The burden of

production then shifts to the defendant to rebut this

presumption by articulating a legitimate, nondiscriminatory

reason for its disparate treatment of the plaintiff. /d. Finally,

the plaintiff must prove that the defendant’s reasons are

pretexts for unlawful discrimination either by showing: (1)

that a discriminatory reason more likely motivated the

defendant or (2) that the defendant’s reason is unworthy of

credence. Texas Dep't of Community Affairs v. Burdine, 450

U.S. 248, 253-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207

L1. The district court in the Britt case held that a prima facie case

consists of evidence that a plaintiff (1) was discharged, (2) was qualified

for the position, (3) was within the protected class at the time of

discharge, (4) was replaced by someone outside the protected class, or (5S)

by someone younger, or (6) show otherwise that his discharge was

because of age ( citing Bienkowski, 851 F.2d at 1505).

The district court in the Hamilton case held that the plaintiffs

could establish a prima facie case by showing (1) the company refused to

consider recall applications of protected employees over forty years of

age; (2) applications for recall were accepted from workers under forty

years of age; and (3) the protected workers were qualified for the jobs.

Both the plaintiffs and Grocers each articulate a different version

of what they believe the correct test for establishing a prima facie case

should be.

23a

(1981). The plaintiff retains the burden of persuading the

fact finder that impermissible discrimination motivated the

adverse employment decision. /d.

[4] Both Britt and Hamilton contend that Grocer’s

replacement of employees with others, some of whom were

allegedly younger, was motivated by the age of the strikers

and violated the ADEA. The district courts in both Britt and

Hamilton held that the plaintiffs had failed to make out a

prima facie case under the act.

As this Court has stated "it is relatively easy both for

a plaintiff to establish a prima facie case and for a defendant

to articulate a legitimate, non-discriminatory reason for his

decision." Amburgey v. Corhart Refractories Corp., 936

F.2d 805, 811 (Sth Cir. 1991). Because neither plaintiff can

show that the defendant’s reasons for disparate treatment of

the plaintiffs are pretexts for unlawful discrimination,

however, we see no need to rummage through the arguments

over whether the plaintiffs have established a prima facie

case. In the context of summary judgment or directed

verdict, the question is not whether the plaintiff proves

pretext, but rather whether the plaintiff raises a genuine issue

of fact regarding pretext. Burdine, 450 U.S. at 256, 101

S.Ct. at 1095. Bother Britt and Hamilton fail to do so.

Grocers contends that its decision to convert the

temporary employees into permanent employees was

motivated by several concerns: (1) its gratitude to these

individuals for keeping the company in operation during the

strike; (2) that these temporary employees were leaving to

take jobs elsewhere; and (3) striker misconduct. In the Britt

case, the plaintiffs offered several affidavits in an attempt to

establish pretext. The evidence in these affidavits offered to

show age-related employment decisions consists of what are

at best characterized as Stray remarks by three Grocers

24a

employees concerning the age of the workers. This Court

has ruled that similar statements are insufficiently probative

to create a jury issue in and ADEA case. Guthrie v. Tifco,

941 F.2d at 379; Elliott v. Group Medical & Surgical Serv. ,

714 F.2d 556, 565 (Sth Cir. 1983); cert. denied, 467 U.S.

1215, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984); Stendebach

v. CPC Int’l, Inc. , 691 F.2d 735, 738 (Sth Cir. 1982), cert.

denied, 461 U.S. 944, 103 S.Ct. 2122, 77 L.Ed.2d 1302

(1983). These statements are insufficient to show either that

(1) a discriminatory reason more than likely motivated

Grocers or (2) Grocers’ explanation is unworthy of credence.

The Hamilton plaintiffs relied on much the same

evidence in presenting their case for trial as did the Britt

plaintiffs in the summary judgment proceeding. This

evidence even considered with the additional evidence

adduced at trial is insufficient to rebut Grocers’ reasons for

failing to recall the strikers. As the district court found,

Grocers may have been reluctant to rehire these workers, but

the evidence is insufficient to establish that the reason for

this reluctance was age discrimination.

Contrary to plaintiffs’ assertions, Grocers was under

no obligation to notify the plaintiffs that they were being

replaced. Nor does this lack of notification imply a bias

based on age. Hamilton also challenges Grocers’ practice of

refusing to recall anyone who resigned to obtain his benefits.

The theory is that Grocers coerced older workers into

resigning to obtain their pension benefits, thereby

discriminating against these workers based on age. Nothing

in the record supports this claim. Additionally, we do not see

how this practice harms older plaintiffs.

Hamilton asserts that the strikers were replaced

because of their seniority and higher salaries, and that such

an action supports an inference of age discrimination. This

ee

25a

Court, however, has stated repeatedly that "[s]eniority and

age discrimination are unrelated." Williams y. General

Motors Corp., 656 F.2d 120, 130 n. 17 (Sth Cir. 1981),

cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655

(1982); see also Amburgey. 936 F.2d at 813. Hamilton

relies on Uffelman v. Lone Star Steel Co. , 863 F.2d 404, 408

(Sth Cir.), cert. denied, 490 U.S. 1098, 109 S.Ct. 2448, 104

L.Ed.2d 1003 (1989), to support this contention. Uffelman

is distinguishable, however, because, by terminating

Utfelman, the employer was able to avoid paying Uffelman’s

retirement benefits as he was nine months away from

vesting. In this case, Grocers actually paid substantial

retirement benefits to strikers who resigned. Finally, the

comparison of the age of workers at another Grocers’

subsidiary with the age of workers at the location where the

plaintiffs worked does not bolster this argument.

Hamilton offered as support of age discrimination

evidence that during the recall, younger workers were hired

to take regular positions, while older employees awaiting

recall were offered only jobs in the frozen food

warehouse.'? The record does not support this contention.

Additionally, this Court held in Hanchey v. Energas Co.,

925 F.2d 96, 99 (Sth Cir. 1990), that offering a different job

to the plaintiff did not raise a genuine issue of fact regarding

pretext. We find the remainder of Hamilton’s evidence

equally unconvincing.

In sum, the appellants are left with nothing more than

their speculation and belief that they were permanently

replaced because of age. This type of evidence is insufficient

to create a fact issue as to pretext. Little y. Republic

Refining Co., 924 F.2d 93 (Sth Cir. 1991): Laurence vy.

12. Plaintiffs complain that the recall offers Were to frozen food

selector positions, which they claim are undesirable.

26a

Chevron U.S.A., Inc. 885 F.2d 280 (Sth Cir. 1989).

Therefore, we uphold the summary judgment in the Britt case

and the directed verdict in the Hamilton case.

IV. Summary Judgment of Hamilton’s Section 301

Claims.

[5] The Hamilton plaintiffs base their § 301 claims

on alleged agreements made between the union and Grocers

in April of 1987. They contend that about April 2, 1987,

Mr Ed Fox, Grocers’ operations manager, offered to permit

the return of the striking employees, if they immediately

agreed to cease their strike. They further contend that this

offer and acceptance constituted an employment contract

between the company and the union, the breach of which is

actionable under Section 301 of the LMRA, 29 U.S.C. §

185(a). Hamilton also asserts that a letter from Mr. R.S.

Bambace to Mr. A. W. Parker agreeing to recall strikers as

provided by Laidlaw Corporation v. NLRB, 414 F.2d 99 (7th

Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25

L.Ed.2d 100 (1970), also constituted an offer which was

breached. The district court held that neither the oral

agreement nor the letter constituted a contract for labor

giving rise to a § 301 action, and granted Grocers’ Motion

for Summary Judgment. We affirm.

Under the L.M.R.A. § 301, 29 U.S.C. 185, a federal

court has jurisdiction over breach-of-contract actions between

an employer and a labor organization. The fact that an

alleged contract was based on an oral agreement during

negotiations does not make it unenforceable under §185.

Smith v. Kerrville Bus Co., 709 F.2d 914, 920 (Sth Cir.

1983).

27a

The evidence presented by Hamilton in support of the

contract demonstrates that this promise was never considered

a binding contract arrangement. A.E. Parker, the union

negotiator to whom the alleged statements were made, did

not regard the statement as an offer of a binding contract,

nor does he show that the Union accepted such an offer. In

fact, the strikers agreed to return to work unconditionally

after the supposed agreement was made. The district court

correctly dismissed the § 301 claim, because no evidence

existed from which a jury could find that a contract existed

between the strikers and the company.

[6] Hamilton’s argument that the company

breached the written recall agreement must also fail. This

claim is barred by Hamilton's failure to pursue the

appropriate arbitration remedies. Where a contract provides

for binding arbitration, an employee may not sue _ his

employer under § 301 unless he has exhausted those

remedies. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

105 S. Ct. 1904, 85 L.Ed.2d 206 (1985). Hamilton does not

dispute the existence of the arbitration provision or the

failure to invoke it. Hamilton instead argues that, because

Grocers repudiated the remedial procedures specified in the

contract, Rabalais v. Dresser Industries, Inc., 566 F.2d 518,

519 (Sth Cir. 1978), requires that there was no need to

exhaust the arbitration rights. We disagree. Grocers alleged

misconduct is insufficient to invoke the repudiation

exception.'* We affirm the holding of the district court.

13. Hamilton argues that Grocers repudiated the arbitration

procedures by concealing its alleged breach of the recall agreement

through its use of labor pool workers.

28a

V. Summary Judgment on Hamilton’s State Law

Tort Claims.

[7-10] Hamilton alleges a cause of action for

the state law torts of duress and intentional infliction of

emotional distress. The district court held that these claims

are preempted by provisions of the NLRA and the ADEA

based on Farmer v. United Brotherhood of Carpenters &

Joiners, Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d

338 (1977), and granted Grocers’ Motion for Summary

Judgment. We do not agree that Hamilton’s claims are

preempted under Farmer. However, we affirm the district

court’s holding. Hamilton’s allegations of intentional

infliction of emotional distress and duress are meritless.

Grocers merely insisted on its legal rights in a permissible

way. Under this Court’s decision in Wilson v. Monarch

Paper Co., 939 F.2d 1138, 1144 (Sth Cir. 1991), that does

not give rise to a cause of action. The decision of the

district court is affirmed.

In sum, for the foregoing reasons, we disagree with

the district court’s holding in the Britt case that the NLRA

preempts the ADEA. Because we agree with the district

court’s holdings on all other issues, the judgments are

AFFIRMED.

29a

SUPPLEMENTAL

APPENDIX C

Richard L. BRITT and Timothy

Jackson, Jr., et al., Plaintiffs,

ie

GROCERS SUPPLY COMPANY, INC.

et al., Defendants.

Civ. A. N, H-88-1281

United States District Court,

S.D. Texas

April 8, 199].

Employees who struck based on employer’s proposal

to change wage calculation from flat rate system to one based

on productivity and who were replaced by allegedly younger

workers brought age discrimination action. The District

Court, Hughes, J., held that: (1) workers failed to state claim

under Age Discrimination in Employment Act, and (2) even

assuming that change in compensation was motivated by

hostility to older workers, claim would be preempted by

National Labor Relations Act.

So ordered.

l. Civil Rights 168

Workers who struck and were replaced failed to state

claim under Age Discrimination in Employment Act,

inasmuch as workers were not discharged, workers presented

no evidence that they were within protected class and

30a

workers offered no evidence that they were replaced by

younger employees, and even if employer's new payment

scheme calculating wages on productivity rather than on flat

rate system favored younger workers because it required

harder work it did not violate Act to require all workers to

increase output. Age Discrimination in Employment Act of

1967, § 2 et seq., 29 U.S.C.A. § 621 et seq.

ye Civil Rights 388

To make prima facie case under Age Discrimination

in Employment Act, plaintiffs must show that they were: (1)

discharged; (2) qualified for their positions; (3) within

protected class at time of discharge; and (4) replaced by

younger workers or otherwise discharged because of their

age. Age Discrimination in Employment Act of 1967, § 2

et seq., 29 U.S.C.A. § 621 et seq.

a Civil Rights 332

Even assuming that employer’s proposed change in

wage calculation from flat rate system to one based on

productivity was motivated by hostility to older workers, age

discrimination claim brought by workers who struck and

were replaced by allegedly younger workers was preempted

by National Labor Relations Act because issue was one

within conditions of employment that union and management

had authority to negotiate. National Labor Relations Act, §1

et seq., as amended, 29 U.S.C.A. §151 et seq.

Richard Britt, pro se.

James M. Mabry, Houston, Tex., for Jackson.

a

3la

Christopher E. Howe. Houston, Tex., for defendant

Grocers Supply.

Eric H. Nelson, Houston, Tex., for defendant

Teamsters.

OPINION ON SUMMARY JUDGMENT

HUGHES, District Judge.

i Introduction.

Richard L. Britt and Timothy Jackson, Jr., brought

this class action against Grocers Supply Company, Inc., and

the Teamsters Local 968 alleging that the employer’s change

in the wage calculations from a flat rate system to one based

on productivity was age discrimination. The plaintiffs have

abandoned their claims against the Union, and they consented

to the entry of an adverse judgment to their deceptive trade

practices claims against Grocers Supply. The court finds the

evidence insufficient to establish that the employer’s change

to a new system of calculating wages was discriminatory.

The plaintiffs were not discharged; they walked off the Job.

Finally, the plaintiffs’ age Claim is preempted by the National

Labor Relations Act. This action will be denied.

Background.

bo

The plaintiffs were employed as drivers and

warehousemen at Grocers Supply. During negotiations with

the Union in the fall of 1986, Grocers Supply proposed

employee compensation based on productivity rather than an

hourly wage. The work force consisted mainly of long-term

employees over forty years of age. The workers opposed the

new production system. Against the advice of the Union

leadership, the workers voted to strike on December rs

1986.

32a

During the strike, Grocers Supply hired replacements

for the strikers. In early 1987, Grocers Supply began

converting these temporary workers into permanent

employees. The strikers stopped picketing and attempted ‘to

return to work on April 6, 1987. The strike was an abject

failure. When the plaintiffs asked to return to work, Grocers

Supply told them that they had been replaced but they would

be considered first for openings.

ts Age Discrimination

[1,2] The plaintiffs contend that Grocer

Supply’s replacement of employees, some of whom were

allegedly younger, was motivated by the age of the strikers

and violated federal law. Age Discrimination in Employment

Act, 29 U.S.C. §621. To make a prima facie case under the

act, the plaintiffs must show that they were: (a) discharged;

(b) qualified for their positions; (c) within the protected class

at the time of discharge; and (d) replaced by younger

employees or otherwise have been discharged because of

their age. Bienkowski v. American Airlines, 851 F.2d 1503

(Sth Cir. 1988).

A. Discharge.

The plaintifis were not discharged.

They voluntarily walked off the job because of

an unfavorable impasse in the negotiations for

a new union contract. Once the strike ended,

the plaintiffs attempted to return to their

positions but found that other people held the

jobs they had left. Grocers Supply did not

bar the strikers from later employment; it

agreed that they would be reemployed as soon

as jobs became available.

33a

B. Qualifications.

The court assumes the plaintiffs are

qualified because they would have returned to

their previous positions, although under a new

management scheme.

c: Protected Class.

After years of litigation, the plaintiffs

have presented no evidence of the class

members’ ages or that all of them were over

forty.

D. Replacements.

Finally, the plaintiffs have offered no

evidence that they were replaced by younger

employees. Nor is there evidence that the

applicant pool for replacement drivers was

older than the average person hired from that

pool during the strike. There is no evidence

that Grocers Supply was hostile to older

workers or otherwise considered age rather

than ability.

The only articulable basis of age

discrimination offered was the perception of

one of the original workers that the new

scheme favored younger workers because it

Was going to require harder work. Assuming

that to be true, it does not violate the act to

require all workers to increase Output, hours,

or other burdens.

34a

4. Preemption.

[3] Even assuming that the change in

compensation and scheduling was motivated by hostility to

older workers, the national labor relations laws would

preempt a claim under the age discrimination act since the

issue is One within the conditions of employment that the

union and management have authority to negotiate. Indeed,

they were negotiating the work assignments. In the event of

a conflict, if a non-NLRA claim applies to the same conduct

that otherwise would be an NLRA issue, the NLRA preempts

the others. Sears, Roebuck & Co. v. San Diego District

Council of Carpenters, 436 U.S. 180, 194, 98 S.Ct. 1745,

1754, 56 L.Ed.2d 209 (1978).

In an absolute conflict, the rights of people as

individuals transcend those of people as employees. The

NLRA, however, does not even risk undermining the age

discrimination act inthis instance. Sears, Roebuck & Co.,

436 U.S. at 187, 98 S.Ct. at 1752. This case is not one of

an individual discriminated against because of age due to the

culture of the employer; this is a dispute over ordinary

working conditions of a group of workers who happen to be

over forty. It is possible for a union and employer to collude

to benefit younger workers at the direct expense of protected

workers in a way that bears little relation to a significant

interest of either union or employer. The plaintiffs,

however, offered no evidence of that circumstance even

though the court encouraged them to develop that evidence, ~

if it existed. The plaintiffs’ age allegations are identical to

those that would be made under an unfair labor practices

complaint. NLRA §§ 8(a)(1), (3), and (5).

35a

a Conclusion.

The plaintiffs have failed to proffer evidence of the

elements under the federal age discrimination Statute, and if

they had established that Claim, it would be preempted by the

national labor laws. The plaintiffs will take nothing from

Grocers Supply.