# Appendix — Britt v. Grocers Supply Co.

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2266%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 508 U.S. 960

## Text

[ 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2266%3A2. Public record. Not legal advice.