Opposition Brief — Egan v. Wells Fargo Alarm Services

No. 94-242

In THE

Supreme Court of the Anited States

OcTOBER TERM, 1994

THOMAS H. EGAN,

Petitioner,

vs.

WELLS FARGO ALARM SERVICES,

also known aS BAKER PROTECTIVE SERVICES, INC.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

THOMAS M. HANNA

(Counsel of Record for Respondent)

2730 North Ballas Road, Suite 200

St. Louis, Missouri 63131-3039

314-567-7350

Of Counsel:

McMahon, Bercer, HANNA,

Linmnan, Copy & McCartuy

St. Louis Law Priming,Inc. 13307ManchesterRd. St Louis, MO 63131 314-231-4477

QUESTION PRESENTED FOR REVIEW

May Petitioner, a union employee whose employment terms

are governed by a union contract, maintain a wrongful discharge

action for alleged “whistle-blowing,” when Missouri case law

limits such actions to at-will employees and where Respondent’s

defense would entail interpretation of the collective bargaining

agreement?

Nl ate

— lli—

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .................. i

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TABLE OF CITATIONS

Page(s)

CASES CITED:

Allis-Chalmers Corporation v. Lueck, 471 U.S. 202

PR PEIE viiscndscoaaincstutelietisninisccibastnbighilsaamenibahiigialenisesian 2,4,6

Amaan vy. City of Eureka, 615 S.W.2d 414,415 (Mo. banc

ROE vid lteistaccinicoinwseicaedunancessccateneatéabeciaamintdaaieaiaianass 3

Boyle v. Vista Eyewear, Inc., 700 S.W.2d 859 (Mo. App.

TRUE itiestuios Iacsabiistarssttahaniaesadcadepcmaadndacaalnmagaiaie Z

Brown v. Hotel Employees, 468 U.S. 491, 501

PNT iciviiithidadneaiindiosuaticeet uctadienasaalocstbieailmssbias 4

Dake v. Tuell, 687 S.W.2d 191, 193 (Mo. banc 1985).. 3

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, n. 14

OUI shah cciehenshces sceaclansoeihcon alas socpnisstcsuaetalldcvietiion 2

Hawaiian Airlines, Inc. v. Norris, 114 S. Ct. 2239

SE Spincassnchashnseciacnibnsacciataleetaiillndpuiaiabbsdnasbusnhinities 5

Hillsborough County v. Automated Medical Laborato-

ries, Inc., 471 U.S. 707, 719 (1985) ..... ee 5

Johnson v. McDonnell Douglas Corp., 745 S.W.2d 661,

Fe a PI BIER ectessencacenssiasanissiconsnninariccneesenss 3

Komm v. McFliker, 662 F. Supp. 924, 925 (W.D. Mo.

i csinskiiniseaiuilisiaineccsiameatankentabdbiniaenaibecsedbiibiaieiandes 3

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.

EE iecicdaithncicch usapitipsensceichenespiescibnibinntitenanieantuies 2,4

Litton Financial Printing Division v. NLRB, 111 S. Ct.

IED siiatina sicnidisccaaiabaspasscciekatibiadaainabetidbniionn 6

ial

Lividas v. Bradshaw, 114 S. Ct. 2068 (1994) ...........0... 3,4,6

Luethans v. Washington University, 838 S.W.2d 117,

12 GES. BD: SIRE) sini iahioncindapnninn 3

McCloskey v. Eagleton, 789 S.W.2d 518,519 (Mo. App.

NPI) sins tncisnstiiievanicdpbenctasniaiemienpaaadcnaenaaaion 3

Petersimes v. Crane Co., 835 S.W.2d 514 (Mo. App.

SPN sicotdainianvinsnnsoceswntonntetnncnitadhesssadiagnaieaabaanaais 3

STATUTES CITED:

National Labor Relations Act, 29 U.S.C. § 151 et

DO sxsresrinicansievinsstarsiicsartiicacijumciinbeloaatabmamast 5

No. 94-242

IN THE

Supreme Court of the United States

Octoser Term, 1994

Tuomas H. Eaan,

Petitioner,

VS.

WELLS Farco ALARM SERVICES,

also known as BAKER PROTECTIVE SERVICES, INC.,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

Petitioner has omitted a factual matter which is significant in

the context of this Petition. Respondent asserted as a defense that

Petitioner’s employment was terminated pursuant to the terms of

a collective bargaining agreement with the International Broth-

erhood of Electrical Workers Local 1 because Petitioner was

absent from work for more than twelve (12) months and lost his

seniority rights which “is the equivalent of termination” (Memo-

randum, A.3-4).

Pe as

SUMMARY OF ARGUMENT

Missouri applies the at-will employment doctrine to persons

who work without a contract for a definite period of time. The

only exception to the at-will rule is a “public policy” exception

where the employee is seriously engaged in a form of “whistle

blowing” with respect to his employer. Petitioner had been

employed pursuant to the terms of a labor contract freely nego-

tiated between Respondent and his Union. Petitioner was

terminated according to the terms of that agreement. Notwith-

standing the fact of the contract, Petitioner asserts that he is

entitled to maintain this action pursuant to the exception to the at-

will doctrine because of the pre-emption doctrine. The Petition

for Writ of Certiorari should be denied because the decision of

the United States Court of Appeals for the Eighth Circuit applied

Missouri case law which is so structured as to avoid conflicts

with federal labor policy. Missouri limits “public policy” claims

to persons employed “at-will.” By excluding those employed

pursuant to acontract, state law obviates the need for a state court

to interpret a labor contract. In this case, Petitioner was termi-

nated by operation of contract and any court hearing this case

would have to interpret Article VIII (A.17-18) and possibly

Article XXI (A.30) of the applicable collective bargaining

agreement in the course of decision-making in a manner that

would be contrary to this Court’s rulings in Allis-Chalmers

Corporation v. Lueck, 471 U.S. 202 (1985) and Lingle v. Norge

Division of Magic Chef, Inc., 486 U.S. 399 (1988).

a on

ARGUMENT

Missouri follows the doctrine of employment at-will which

permits the termination of an employee working without benefit

of contract “for a definite period of time,”' with or without cause,

and without risk of liability for wrongful discharge. Dake v.

Tuell, 687 S.W.2d 191, 193 (Mo. banc 1985); and Johnson v.

McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. banc

1988). A narrow exception to this doctrine has been carved out

by Missouri Appellate Courts, but not its Supreme Court, where

an employee has complied with, or refused an employer’s

request not to comply with, federal or state law. Boyle v. Vista

Eyewear, Inc., 700S.W.2d 859 (Mo. App. 1985); and Petersimes

v. Crane Co., 835 S.W.2d 514 (Mo. App. 1992). This is

generally referred to as the “public policy” exception. Boyle,

supra, at 871. This exception exists, in large measure, because

at-will employees do not “have job security through union or

individually negotiated contracts.” Boyle, supra, at 878.

Because the “public policy” exception is an exception to the

at-will employment rule, it is hardly surprising that employees

with contracts do not fall within its protection. Komm v.

McFliker, 662 F. Supp. 924, 925 (W.D. Mo. 1987); and Luethans

v. Washington University, 838 S.W.2d 117, 120 (Mo. App.

1992).

Petitioner would have this Court restructure Missouri’s public

policy exception to the at-will employment rule because his

contract is a collective bargaining agreement. In Lividas v.

Bradshaw, 114 S. Ct. 2068 (1994) this Court stated:

“In labor pre-emption cases, as in others under the Su-

premacy Clause, our office is not to pass judgment on the

‘Amaan vy. City of Eureka, 615 S.W.2d 414, 415 (Mo. banc 1981), cert.

denied, 454 U.S. 1084 (1981); and McCloskey v. Eagleton, 789 S.W.2d 518,

519 (Mo. App. 1990).

reasonableness of st.‘e policy, see, e.g., Golden State I, 475

U.S. 608 (1986) (city’s desire to remain ‘neutral’ in labor

dispute does not determine pre-emption). It is instead to

decide if a state rule conflicts with or otherwise ‘stands as

an obstacle to the accomplishment and execution of the full

purposes and objectives’ of the federal law. Brown v. Hotel

Employees, 468 U.S. 491, 501 (1984),” 114 S.Ct at 2076.

As opposed to an obstacle the public policy exception is in

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

(1985) which found that a state tort action which involved

interpretation of a collective bargaining agreement was pre-

empted because of the necessity of preserving the contractually

established arbitration procedure preferred by federal labor

policy as a means of interpreting the contract. Because Respon-

dent terminated Petitioner pursuant to the terms of the union

contract, Article VIII, Section 2,7 whereby seniority is automati-

cally terminated after one (1) year of absence, no court may

resolve the claim without resolving Respondent’s rights in the

context of Petitioner’s absence and the seniority clause of the

contract. Missouri’s exception to the at-will doctrine does not

require a court to interpret the collective bargaining agreement,

and it is that interpretation factor which is the litmus test for

federal pre-emption of a state tort action. Lingle v. Norge

Division of Magic Chef, Inc., 486 U.S. 399 (1988). Precisely

because no court could possible decide this case without resolv-

ing the issue of Petitioner’s termination as an automatic opera-

tion of the seniority clause, it is Petitioner’s tort claim which is

pre-empted, not Missouri’s exception to the rule.

As this Court states in Lividas, supra: “We do not suggest here

that the NLRA automatically defeats all state action taking any

account of the collective bargaining process or every state law

distinguishing union represented employees from others.” 114

7A.17-18.

ae ee

S.Ct. at 2083. Clearly, the National Labor Relations Act has not

expressly pre-empted the entire field of labor relations as that

Act has no express pre-emption provision. 29 U.S.C. 151 et seq.

and see also Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, n.

14 (1987). Where a subject is primarily and historically a matter

of local concern, pre-emption cannot be inferred on the theory of

dominant federal interest. Hillsborough County v. Automated

Medical Laboratories, Inc., 471 U.S. 707, 719 (1985). As Fort

Halifax plainly taught:

“Absent a collective-bargaining agreement, for instaice,

state common law generally permits an employer to run the

workplace as it wishes. The employer enjoys this authority

without having to bargain for it. The parties may enter

negotiations designed to alter this state of affairs, but, if

impasse is reached, the employer may rely on pre-existing

State law to justify its authority to make employment

decisions; that same state law defines the rights and duties

of employees.”

Inasmuch as employment at-will is a circumstance virtually

never associated with a collective bargaining agreement, that

subject is beyond the pale of pre-emption.

Hawaiian Airlines, Inc. v. Norris, 114 S. Ct. 2239 (1994)

offers no support to Petitioner. Not only does Norris focus upon

a state statute creating a right of action, as opposed to a judicially

created exception to acommon law doctrine, the facts in Norris

did not require contract interpretation. The contract here is the

“only source” for Respondent’s right/obligation to terminate

Petitioner. Petitioner could have sought recovery through the

grievance and arbitration procedure’ and, possibly pursuant to

Section 301 of the Labor Management Relations Act, 29 U.S.C.

§ 185. The only primary sources for competent interpretation of

* Art. XIII, A.24-26.

the agreement would be an arbitrator selected pursuant to the

grievance procedure‘ or a federal court in the proper factual

setting. See Litton Financial Printing Division v. NLRB, 111

S.Ct. 2215 (1991). Inasmuch as Petitioner did not utilize the

former, and had no right to the latter, because there was no

allegation that there existed a breach of the duty of fair represen-

tation, Petitioner cannot now foreclose Respondent’s right to

have the applicable provisions of the collective bargaining

agreement interpreted by an arbitrator. The purpose of federal

pre-emption is,

“.. . to assure that the purposes animating § 301 will be

frustrated neither by state laws purporting to determine

‘questions relating to what the parties to a labor agreement

agreed, and what legal consequences were intended to flow

from breaches of that agreement,’ Lueck, 471 U.S. at 211.

~..” Lividas, supra, 114 S. Ct. at 2077.

Now to find that pre-emption demands that state courts

interpret labor contracts by holding that a protection afforded at-

will employees must also be granted union employees stands the

entire concept of pre-emption on edge and undermines the very

reason why Missouri courts created an exception to at-will

employment.

*Tbid.

a, pow

CONCLUSION

Employment at-will is a subject matter exclusively regulated

by state law. Missouri has, thus far, structured a limited excep-

tion to the at-will doctrine for “public policy” claims. That

exception does not conflict with federal labor law or policy

because the at-will doctrine is inapplicable to a union employee

working pursuant to a union contract. Pre-emption is not an

appropriate vehicle to micro manage a small exception to the at-

will employment doctrine which in and of itself is historically a

matter of exclusive state regulation. For this and other reasons,

Respondent prays that the Petition for Writ of Certiorari be

denied.

Respectfully submitted,

THOMAS M. HANNA

Counsel ef Record for Respondent

2730 North Ballas Road, Suite 200

St. Louis, Missouri 63131-3039

314-567-7350

OF COUNSEL:

McMAHON, BERGER, HANNA,

LINIHAN, CODY & McCARTHY