Petition for Writ of Certiorari — Bigelow v. Dallas & Mavis Forwarding Co.

~ Supreme Court, U.S.

FILED

97.287 AUG 1 11997

Offltc Ur tht ccenAn—

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

JOSEPH E. BIGELOW; WAYLAND BLAKELY;

SIMON BOLDEN; CARLTON BROWN;

WILLIAM DANNER; ENOCH DAVIS;

RANDALL DUVALL; TERRY HILLARD;

CHARLES HOGUE, JR.; LARRY HOWARD;

GEORGE HUDSON; RODNEY H. KELIEN;

JOE LEONARD; DALE LEWIS;

ADAM LUDLOW; DANIEL L. MILLER, JR.;

STEVE NIFONG; JACK PATE;

MORRIS A. ROSE;

BILL SANDERS; HARLEY STARNES;

PAUL STONER; WILLIAM STROUD

andRONWEAVIL - - - - - - - Petitioners

versus

DALLAS & MAVIS FORWARDING COMPANY,

INC., a Subsidiary of JUPITER TRANSPOR-

TATION COMPANY - - - - - £=Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

HARRIS J. BERMAN, Esquire PHILIP C. KIMBALL, Esquire

oth Floor 1970 Douglass Blvd.

Kentucky Home Life Bldg. Kentucky Home Life Bldg.

Louisville, KY 40202 Louisville, KY 40205

(502) 583-4881 (502) 454-4479

Co-Counsel for Petitioners Co-Counsel for Petitioners

August __, 1997

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY

i

QUESTION PRESENTED FOR REVIEW

Should this Court adopt a “bright-line” rule of law to

the effect that no claims of unlawful employment discrimi-

nation based upon state statutes that mirror the Age Dis-

crimination in Employment Act, 29 U.S.C. §621, et. seq.,

Title VII, 42 U.S.C. §2000e, et. seq., or similar laws, may

ever be “preempted” by “§301” of the National Labor-Man-

agement Relations Act [now 29 U.S.C. §185(a)]?

aici ee

ii

TABLE OF CONTENTS

PAGE

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

TAREE. OF CeCe wssicnticvicinisetsiactnesins il

TABLE OF AUTHORITIES ................::cccccesssceeeeees iii

OPINIONS AND ORDERS BELOV ................... : 1

JURISDICTION OF THE COURT ................0.0.....

STATUTORY PROVISIONS INVOLVED

Se Ee ES sicnescinisinimensenineenmnaieraananaioensaain 2

2)

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2)

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—

ARGUMENT. The Decision for which Review

is Sought Presents this important Federal

Question that has not been but should be

settled by this Court: Whether §301 of the

National Labor Management Relations Act

Ever Pre-Empts State-Law Claims of Age

Discrimination, or other forms of Discrimi-

nation that are also Prohibitied by

PE IE asses ccicccinesirtiosnigelincemadamenmaaiadicaias 9

APPENDIX:

Memorandum and Order of the Jefferson Circuit

Court of the Commonwealth of Kentucky, No.

92CI-01187, entered on May 9, 1994 ............... la

Opinion Affirming of Kentucky Court of Appeals,

No. 94-CA-1176-MR, rendered on June 7,

Order Denying Petition for Rehearing of the

Kentucky Court of Appeals, entered on July

BD, FE enecinenssisctiesusnehsediacnoscbiiniaagia tall aban aoa. 12a

Order of the Kentucky Supreme Court denying

Discretionary Review, entered on May 14,

SEF E osercsccssmsentesininnanssinisiisennaenaeelmnane saan nnn til kiiaa zs 13a

Memorandum Opinion of the United States

District Court for Western Kentucky, at

Louisville in the case of Judy Wild and

Salena Darnell v. Huttig Sash & Door

Company, No. 3:95CV- £68. S and Order

granting FRCP 59 Relief, both dated June

©, FRIIS anasssesses:connennnsensnneisiascesiecneaneaiaiaieiaaeaannnanae l4a

iii

TABLE OF AUTHORITIES

PAGE

Cases:

Adkins v. General Motors, 946 F.2d 1201 (6th

a as ss sicemsabanairennens 11

Baker v. Farmer’s Elec. Co-Op, Inc., 34 F.3d 274

I a slleatedenentnenanens 12

Dallas and Mavis Forwarding Co. v. Local Union

89, 972 P.2d 129 (6th Circ., 1992, reh. denied,

cert. denied, 506 U.S. 1051, 113 S.Ct. 9738, 122

ae se ee bananihabnhaiantubien 5

DeCoe v. General Motors Corp., 32 F.2d 212 (6th

a si Gasbeenenasacanernenenan 12

Jarvis v. Nobel/Sysco Food Service Co., 985 F.2d

Fe Ee, FR rv encnsescccscssacescnnessesacssvesiee 10

Johnson v. Beatrice Food Co., 921 F.2d 101&

a ren cskadenonianniesstne 12

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

399, 108 S.Ct. 877, 100 L.Ed.2d 410 (1988) ...8, 9, 10, 12

McCormick v. A T & T Technology, Inc., 934 F.2d

CRE NUMIPED i issnsvasesctsedeasevrabeveceanteteseans

Meyers v. Chapman Printing Co., Ky., 840 S.W.2d

|___SCREEN 6

O’Shea v. Detroit News, 887 F.2d 683 (6th Circ.,

RETESET SNP ee ee nee 10, 12

Simpson v. Alaska State Commission for Human

Rights, 608 F.2d 1171 (9th Circ., 1979)........... 11

Tisdale v. Local 704, 25 F.3d 1308 (6th Circ.,

RE ON ene eee EO 11

Quesnel v. Prudential Ins. Co., 66 F.3d 8 (1st Circ.,

a aaa caabaua cued ecnantikaiensbeinen 12

Wild and Darnell v. Huttig Sash & Door Company,

Civil Action No. 3:95CV-568-S (W.D. Ky.,

ssi icncahaininaansenens eth 11

Statutes:

29 United States Code Section 185(a) ................... 2,7,9

29 United States Code Section 621, et. seq. .......... 9,10

29 United States Code Section 623(a)(1)............... 3

29 United States Code Section 633.................:::008 3

42 United States Code Section 2000e, et. seq. ...... 9

42 United States Code Section 2000e-2(a)(1)........ 2

42 United States Code Section 2000e-7................. 3, 11

Kentucky Revised Statutes Section 344.040(1) ..... 4,7

Kentucky Revised Statutes Section 344.450......... 5

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

JOSEPH E. BIGELOW; WAYLAND BLAKELY;

SIMON BOLDEN; CARLTON BROWN;

WILLIAM DANNER; ENOCH DAVIS;

RANDALL DUVALL; TERRY HILLARD;

CHARLES HOGUE, JR.; LARRY HOWARD;

GEORGE HUDSON; RODNEY H. KELIEN;

JOE LEONARD; DALE LEWIS;

ADAM LUDLOW; DANIEL L. MILLER, JR.;

STEVE NIFONG; JACK PATE;

MORRIS A. ROSE;

BILL SANDERS; HARLEY STARNES;

PAUL STONER; WILLIAM STROUD

and RON WEAVIL — - . - . : : Petitioners

versus

DALLAS & MAVIS FORWARDING COMPANY,

INC., a Subsidiary of JUPITER TRANSPOR-

TATION COMPANY - - - - - - Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF KENTUCKY

OPINIONS AND ORDERS BELOW

The Supreme Court of Kentucky entered an Order de-

nying discretionary review in this case on May 14, 1997,

No. 96-SC-709-D, which Order may be found in the Appen-

dix of this Brief as Exhibit D.

9

The Court of Appeals of Kentucky rendered its opinion

in this case on June 7, 1996, No. 94CA-1176-MR, which

opinion may be found in the Appendix of this Brief as

Exhibit B. The Court of Appeals denied plaintiff's Petition

for Rehearing by Order dated July 26, 1996, which Order

may be found in the Appendix of this Brief as Exhibit C.

The Jefferson Circuit Court of the Commonwealth of

Kentucky entered a Memorandum and Order dismissing

the Plaintiffs’ claims in this case on May 9, 1994, No.

92C1-01187, which Memorandum and Order may be found

in the Appendix of this Brief as Exhibit A.

JURISDICTION OF THE COURT

The Order sought to be reviewed was entered on May

14, 1997.

The jurisdiction of this Court is invoked under 28 United

States Code §1257(8).

STATUTORY PROVISIONS INVOLVED

IN THIS CASE

29 United States Code §185(a)

Suits for violation of contracts between an employee

and a labor organization representing employees in an in-

dustry affecting commerce as defined in this chapter, or

between any such labor organizations,-may be brought in

any district court of the United States having jurisdiction

of the parties, without respect to the amount in contro-

versy or without regard to the citizenship of the parties.

42 United States Code §2000e-2(a)(1)

It shall be an unlawful employment practice for an

employer to fail or refuse to hire or to discharge any indi-

vidual or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privi-

| |

3

leges of employment, because of such individual's race, color,

religion, sex, or national origin;

29 United States Code §623(a)(1)

It shall be unlawful for an employer to fail or refuse to

hire or to discharge any individual or otherwise discrimi-

nate against any individual with respect to his compensa-

tion, terms, conditions, or privileges of employment because

of such individual's age;

42 United States Code §2000e-7

Nothing in this subchapter shall be deemed to exempt

or relieve any person from any liability, duty, penalty, or

punishment provided by any present or future law of any

State or political subdivision of a State, other than any

such law which purports to require or permit the doing of

any act which would be an unlawful employment practice

under this subchapter.

29 United States Code §633(a)

Nothing in this chapter shall affect the jurisdiction of

any agency of any State performing like functions with

regard to discriminatory employment practices on account

of age except that upon commencement of action under

this chapter such action shall supersede any State action.

Kentucky Revised Statutes §344.040(1)

It is an unlawful practice for an employer to fail or

refuse to hire, or to discharge any individual, or otherwise

to discriminate against an individual with respect to com-

pensation, terms, conditions, or privileges of employment,

because of the individual’s disability, race, color, religion,

national origin, sex, age between forty (40) and seventy

(70), or because the individual is a smoker or nonsmoker,

as long as the person complies with any workplace policy

concerning smoking.

4

Kentucky Revised Statutes §344.450

Any person deeming himself injured by any act in vio-

lation of the provisions of this chapter shall have a civil

cause of action in Circuit Court to enjoin further viola-

tions, and to recover the actual damages sustained by him,

together with the costs of the law suit, including a reason-

able fee for his attorney of record, all of which shall be in

addition to any other remedies contained in this chapter.

STATEMENT OF THE CASE

Material Facts

The Petitioners are 24 of 88 individuals who were, un-

til March, 1990, employed by a company known as Allied

Systems, Inc., to man the “yard and decking” operations of

Allied at the Kentucky Truck Plant of Ford Motor Com-

pany just outside of Louisville, Kentucky. The yard and

decking operations consisted of mounting newly manufac-

tured trucks on to tractor-trailer trucks for delivery to re-

tail truck dealers throughout North America.

In March, 1990, the Respondent, Dallas and Mavis For-

warding Company, a subsidiary of Jupiter Transportation

Company, took over the yard and decking operations at

the Kentucky Truck Plant pursuant to a contract with

Ford; Allied having failed to win a renewal of its contract.

All Allied and Dallas and Mavis employees eligible to

do yard and decking work were members of the Interna-

tional Brotherhood of Teamsters, local 89. The Teamsters,

Allied, Dallas and Mavis, and Ford were parties to a labor

agreement governing the rights of employers and employ-

ees working at the Kentucky Truck Plant. This agreement

was known as the National Master Automobile Transport-

ers Agreement and included several “riders” applicable to

the Kentucky Truck Plant.

When Dallas and Mavis took over the yard and decking

operations at the Kentucky Truck Plant, Allied laid off the

~

5

Petitioners and their co-workers, the group of 88 mentioned

above. These individuals believed that their labor agree-

ments gave them the right to “follow the work” at the

Kentucky Truck Plant without regard to the particular

company that had contracted with Ford to perform yard

and decking operations. Dallas and Mavis, on the other

hand, purported to believe that the labor contracts required

it to employ its own employees. When the former Allied

employees sought to report to work at the Kentucky Truck

Plant, Dallas and Mavis turned them away.

The former Allied employees then filed a grievance,

pursuant to the National Master Agreement and relevant

supplements. Dallas and Mavis vigorously contested this

grievance. Nevertheless, on December 14, 1990, a Board

of Arbitration essentially sustained the grievance of the

displaced former Allied employees by ordering Dallas and

Mavis to “dovetail” its seniority roster for the yard and

mounting operations at the Kentucky Truck Plant with

the seniority roster of Allied Systems, Inc.

Almost all of the former Allied employees were senior

to the Dallas and Mavis employees and thus were eligible

to “bump” them.

Dallas and Mavis sought to set aside the findings and

award of the Board of Arbitration by filing a lawsuit in the

United States District Court for Western Kentucky. It

lost. It then appealed to the United States Court of Ap-

peals for the Sixth Circuit and lost again, Dallas and Ma-

vis Forwarding Co. v. Local Union 89, 972 F.2d 129 (6th

Circ., 1992). Finally it sought a writ of certiorari from this

Court. Its petition was denied on January 11, 1993, 506

U.S. 1051, 118 S.Ct. 973, 122 L.Ed.2d 128.

During December, 1991, Dallas and Mavis began com-

plying with the Order of the Board of Arbitration by reem-

ploying former Allied employees based upon their seniority.

Most of the Petitioners returned to work at this time or

a

6

shortly thereafter, although some had retired, become dis-

abled, or found other employment during the 21 months

that they had been out of their yard and decking jobs.

_._.. — ...Although it took several more years, the former Allied ates "

workers recalled to work by Dallas and Mavis also re-

ceived back pay and other benefits provided by the rel-

evant labor contracts.

On February 20, 1992, the Petitioners filed this law-

suit in the Jefferson Circuit Court of the Commonwealth of

Kentucky alleging that Dallas and Mavis’s decision to re-

place them with Dallas and Mavis employees was moti-

vated by age bias in violation of Kentucky Revised Statutes

§344.040(1), one part of the Kentucky Civil Rights Act of

1968, as amended. Such lawsuits are separately autho-

rized by Kentucky Revised Statutes §344.450. In this law-

suit, the movants sought damages beyond those to which

they were entitled under their union contract, most signifi-

cantly those relating to the intangible injuries that they

suffered such as for humiliation, embarrassment, and men-

tal and emotional distress, all of which are available in

actions brought pursuant to KRS 344.450, Meyers v.

Chapman Printing Co., Inc., Ky. 840 S.W.2d 814 (1992).

The Petitioners’ evidence of age bias consisted of an

approximately nine year age difference between the top 40

members of the Allied seniority roster and the Dallas and

Mavis seniority roster (Dallas and Mavis initially manned

the yard and decking operation with only 40 employees);

the fact that fully 40% of the Dallas and Mavis workers

were under 40 while only 7.5% of the Allied employees

were (Transcript of Record, hereinafter TR, pp. 914-917);

the fact that Dallas and Mavis realized a 5% payroll sav-

ings because of the lower vacation pay entitlement of its

younger workforce; the fact that it apparently specifically

argued to the Board of arbitration that it had, in the words

of the Board, “. . . a perceived self-interest in obtaining a

|

7

younger workforce,” than that presented by the former Al-

lied employees (TR, Birdsall Affidavit, Ex. 10, p. 36); and

that fact that its terminal manager, Gerald Winters, made

age-biased statements in the presence of two of the Peti-

tioners concerning the former Allied yard and decking em-_

ployees. (Deposition of Dale Lewis, p. 33; Deposition of

Morris Rose, p. 53).

The Pre-Emption Defense in this Case

At paragraph 7 of the “Affirmative Defenses” section of

the Respondent’s Answer in this case, Dallas and Mavis

pleaded that the, “Plaintiffs’ claims are preempted by Fed-

eral labor law under §301 of the Labor Management Rela-

tions Act, 29 USC §185(a).”

After discovery was completed, the Respondent moved

for summary judgment and spent considerable effort am-

plifying its argument that the Petitioners’ claims were pre-

empted, as set forth in the above paragraph (TR, Motion

for Summary Judgment, pp. 16-21)

The Jefferson Circuit Court accepted this argument and

dismissed the Petitioners’ lawsuit. It held that their claims

were preempted by §301 of the National Labor relations

Act because, “. . . but for the Union Agreements the Plain-

tiffs would not have had any claim,” under the Kentucky

Civil Rights Act; in that they would have had no entitle-

ment to benefit from the seniority provisions of the agree-

ment (Opinion of the Jefferson Circuit Court, p. 4; Appendix,

Ex. D, p. 4a).

The Kentucky Court of Appeals agreed that the Peti-

tioners' claims of age discrimination in violation of Ken-

tucky Revised Statutes §344.040(1) were preempted by §301

of the National Labor Relations Act. This was because,

according to the Court:

The matter regarding which workers should be called

by Dallas and Mavis to work clearly fell under the

8

collective bargaining agreement. . . and the appellants’

claim regarding who should have been called to work

and their discrimination claims are inextricably inter-

twined_with the terms of the agreement-and to resolve — Tt

the dispute, one must consider the agreement (Opin-

ion of the Court of Appeals, p. 7; Appendix, p. 10a ).

Throughout the proceedings below, of course, the

Movants urged upon the Courts the rule set forth by this

Court in Lingle v. Norge, Div. of Magic Chef, Inc., 486 U.S.

399, 413, 108 S.Ct. 877, 885, 100 L.Ed.2d 410 (1988), as

follows:

Section 301 does not preempt [actions brought under]

state antidiscrimination laws, even though a suit un-

der these laws requires a state court to determine

whether a just cause existed to justify the discharge

[of the aggrieved employee].

In addition, the Petitioners argued to the Kentucky

Courts that Respondent had not been able to cite so much

as one opinion in which a Court of the United States or the

several states had held, since Lingle was published, that

§301 preempts a claims based upon an alleged violation of

a state law prohibiting some form of invidious discrimina-

tion.

Finally, of course, the Petitioners cited several opinions

from the federal appellate courts that appeared to indicate

that state law discrimination claims are never preempted

by §301. The Kentucky Court of Appeals rejected Movants

reliance upon all of these arguments, and held that:

The facts of the instant case are distinguishable from

Lingle v. Norge Div. of Magic Chef, Inc., supra; O’Shea

v. Detroit News, 887 F.2d 683 (6th Circ. 1989), and

other cases relied on by the appellants (Opinion of the

Court of Appeals, p. 7; Appendix, p. 11a).

As we have seen, of course, the Kentucky Supreme

Court did not elect to review the opinions of its inferior

courts.

9

ARGUMENT

THE DECISION FOR WHICH REVIEW IS SOUGHT PRE-

SENTS THIS IMPORTANT FEDERAL QUESTION ___ =

er THAT HAS NOT BEEN BUT SHOULD BE SETILED ~

BY THIS COURT: WHETHER §301 OF THE NA-

TIONAL LABOR MANAGEMENT RELATIONS ACT

EVER PREEMPTS STATE-LAW CLAIMS OF AGE DIS-

CRIMINATION, OR OTHER FORMS OF DISCRIMI-

NATION THAT ARE ALSO PROHIBITED BY

FEDERAL LAW.

As we have seen, the Petitioners argued below that

this Court’s opinion in Lingle v. Norge, Div. of Magic Chef,

Inc., 486 U.S. 399, precluded any application of §301 pre-

emption doctrine to their claims of age discrimination un-

der Kentucky law.

As we have also seen, the Kentucky Courts rejected

this argument.

Obviously, the Lingle opinion contained an exhaustive

analysis of the law and application of §301 pre-emption.

Unfortunately, the Kentucky Courts in this case, and other

state and federal Courts in other cases have taken this to

mean that they must apply such an analysis to every claim

based upon state law and involving a collective bargaining

agreement, even claims based upon state statutes prohib-

iting the same forms of invidious discrimination that are

prohibited by federal anti-discrimination statutes such as

42 U.S.C. §2000e, et seq. and 2d U.S.C. §621, et seq.

While this cases by case approach almost always re-

sults in a conclusion of no §301 pre-emption as to such

claims, it wastes valuable judicial resources and occasion-

ally results in such an obvious injustice as the Petitioners

have suffered in this case.

What is clearly needed is a “bright line” rule of law to

the effect that state law claims of invidious workplace dis-

crimination, at least such claims that seek to redress the

forms of discrimination prchibited by federal anti-discrimi-

10

nation law, are never preempted by §301 of the National

Labor Management Relations Act.

It Was impossible tor this Court to articulate such a

rule in the Lingle opinion, of course, for the simple reason

that Lingle involved a state-law claim that did not mirror

federal law. There is no federal law of any sort that pur-

ports to regulate or prohibit discrimination against em-

ployees, such as the plaintiff in Lingle, who file worker's

compensation claims against their employers.

Petitioners believe that this case would be a fit vehicle

for this Court to articulate the “bright line” rule suggested

above. Unlike the plaintiff in Lingle, Petitioners are seek-

ing to vindicate their right to be free from a form of illegal

discrimination, age bias, that is also illegal under federal

law, 29 U.S.C. §621, et. seq.

Opinions of several of the United States Courts of Ap-

peal appear to be pointing in the direction of Petitioners'

suggested rule of law for cases such as this.

In O’Shea v. Detroit News, 887 F.2d 683, 687 (6th Circ.,

1989), and Jarvis v. Nobel/Sysco Food Service Co., 985

F.2d 1419 (10th Circ., 1993) the Courts rejected employer

claims that state law discrimination claims are preempted

by §301 where the allegedly discriminatorily applied en-

titlement exists only by virtue of a collective bargaining

agreement. As the Court said in Jarvis, supra, at 1427:

So long as the state law cause of action is concerned

not with the employer's contractual right to discharge

the employee, but rather with its motives in exercis-

ing that right, the CBA is not relevant and pre-emption

does not apply.

Even more recently, the United States Court of Ap-

peals for the Sixth Circuit pointed out the absurdity of

ever accepting a pre-emption argument in cases such as

the one at bar, stating that:

11

Title VII specifically does not pre-empt state civil rights

actions. 42 U.S.C. §2000e-7. It should be self-evident

that if Congress did not pre-entpt state civil rights”

actions by operation of federal civil rights law, it could

not have meant to do so through federal labor law.

Tisdale v. Local 704, 25 F.2d 1308, 1312 (6th Circ.,

1994). The same of course is true of the federal Age Dis-

crimination in Employment Act, 29 U.S.C. §633, Simpson

v. Alaska State Commission For Human Rights, 608 F.2d

1171 (9th Circ., 1979).

The problem with the cases-by-case analysis still em-

ployed by the Courts in cases such as this is that well-

established principles of pre-emption law often appear to

require the dismissal of valid state-law discrimination

claims. Under traditional principles of pre-emption, claims

founded directly upon rights created by a collective bar-

gaining agreement are pre-empted, as the Kentucky Court

of Appeals stated [Appendix, Exhibit B, Opinion of the

Court of Appeals, p. 5; citing Adkins v. General Motors

Corp., 946 F.2d 1201, 1907 (6th Circ., 1991)]. Petitioners

cannot deny that their right to “follow their work” was

founded directly upon the terms of their collective bargain-

ing. Their comeback to the pre-emption argument, of

course, is that traditional pre-emption analysis does not

apply because the Respondent had no more right to seek to

deny their contractual right to "follow their work," because

of their age than it did to discriminate against them for

that reason in any other of the, “compensation, terms, con-

ditions or privileges” of their employment.

This problem is even more sharply illustrated by the

case of Judy Wild and Salena Darnell v. Huttig Sash &

Door Company, Civil Action No. 3:95CV-568-S (W.D. Ky.,

June 4, 1996) attached hereto as Exhibit E. Even a Dis-

trict Court under the supervision of the United States Court

of Appeals for the Sixth Circuit, which obviously leads the

way in pointing toward the adoption of the “bright-line”

12

rule sought by Petitioners in this case could originally

apply pre-emption analysis so as to dismiss an obviously

viable state law claim of sex bias. As the Court’s attached

Memorandum Opinion in that case shows, it was persuaded

to reverse itself upon a timely FRCP 59 motion, but only

after once again applying pre-emption analysis! Although

O’Shea, supra appears to iterate a “bright-line” rule such

as that sought by Petitioners in this case, Judge Simpson

obviously felt compelled to jump through the pre-emption

hoops that probably still legitimately apply __to state law

tort claims not involving alleged unlawful discrimination,

as set forth in Lingle, supra, and developed by the United

States Court of Appeals for the Sixth Circuit in DeCoe v.

General Motors Corp., 32 F.3d 212 (6th Circ., 1994).

Lest there by any doubt that: a) a full-blown analysis

of the law of pre-emption is an arduous and tedious task;

and b) that Judge Simpson was far from alone in believing

that prevailing law requires such an analysis even in claims

based upon state laws prohibiting illegal sex, age, race,

and related discrimination; the Petitioners refer the Court

to the following sampling of opinions: Quesnel v. Pruden-

tial Ins. Co., 66 F.3d 8 (1st Circ., 1995), Baker v. Farmer's

Elec. Co-Op, Inc., 34 F.3d 274 (5th Circ., 1994), Johnson v.

Beatrice Foods Co., 921 F.2d 1015 (10th Circ., 1990), and

McCormick v. A T & T Technology, Inc., 934 F.2d 551 (4th

Circ., 1991).

The Petitioners’ suggested “bright line” rule of law would

put an end to the obvious waste of precious judicial re-

sources represented by the current state of the law on the

issue of the relationship between “§301” and state law em-

ployment discrimination claims. It would also stop the

possibility of injustice and error as illustrated by the opin-

ions in this case and Judge Simpson’s initial ruling in the

Wild opinion previously discussed. For these two reasons

this Court should grant this petition and settle this impor-

tant question of federal law.

13

Respectfully Submitted,

Puiuip C. KIMBALL _

1970 Douglass Boulevard

Louisville, KY 40205

(502) 454-4479

Harris J. BERMAN

oth Floor, Ky. Home Life Bldg.

Louisville, KY 40202 (502) 583-4881

Co-Counsel for Petitioners

APPENDIX

la

EXHIBIT A

JEFFERSON CIRCUIT COURT ~ ~——

DIVISION FIFTEEN (15)

Case No. 92 CI 01187

JOSEPH E. BicELow, Et Al. - - - - - Plaintiffs

U.

Da.Las & Mavis FoRWARDING Co., INC.,

A Subsidiary of Jupiter Corporation

Transportation Systems - - - - - Defendant

MEMORANDUM AND ORDER

This action comes before the Court on a Motion for

Summary Judgment brought by the defendant, Dallas &

Mavis Forwarding Co., Inc. (“D&M”). The plaintiffs have

filed a Response.

BACKGROUND INFORMATION

The plaintiffs have brought this action)asserting D&M

has discriminated against them on the basis of age. D&M

had an existing contract with the Ford Motor Company at

its Louisville, Kentucky Truck Plant (“KTP”). Plaintiffs

were members of the Teamster Union Local 89 (“Local 89”)

and were originally employed with a driveaway trucking

operation known as Allied Systems, Inc. (“Allied”) which

also had an existing contract with KTP. D&M entered

into a National Master Automobile Transporters Agree-

ment and Central-Southern/Eastern Areas Driveaway

Supplemental Agreement (the “National Agreement”) with

Local 89, as well as a local supplemental agreement (the

“supplemental agreement”).

After a rebidding with KTP, D&M won the contract for

motor deliveries, while Allied won the hid for pre-ship-

2a

ment preparations. As a result, many Allied employees,

among whom were the plaintiffs, no longer had jobs in the

yard and-decking operations. D&M needed workers in the

yard operation but had thirty-five (35) surplus driver posi-

tions.

When D&M took over the driveaway operation at KTP,

it brought in its own employees. Plaintiffs and other former

employees of Allied then brought an action asserting that

they should have been hired pursuant to the National

Agreement. D&M contended it had an obligation to fill the

yard positions with its own workers who would be out of

work because of the realignment caused by the new con-

tract. The action went to a National joint Arbitration Com-

mittee (the “Committee”) which rendered an opinion and

award in December of 1990. A majority of the Committee

held that the National Agreement required D&M to merge

its KTP seniority list with Allied’s list of laid-off employ-

ees. D&M sought to have the award vacated and the Sixth

Circuit agreed with the Committee that the award was

rationally drawn from the essence of the National Agree-

ment. See Dallas & Mavis Forwarding Co. v. Local Union

89, 972 F.2d 129 (6th Cir. 1992).

D&M now asserts that the Committee retains jurisdic-

tion over the remedies portion of the case as it has re-

quired D&M to make the employees whole for losses they

incurred by D&M’s refusal to employ them. In other words,

the crux of D&M’s argument is its assertion that the case

at bar is not an age discrimination action but, rather, a

case concerning the application of seniority under the Na-

tional Agreement to employees of Allied seeking the same

jobs as D&M employees.

D&M also contends that the employees who wanted to

return to work have done so, in accordance with the deci-

sion of the Committee. D&M asserts that its decision not

to hire the plaintiffs was based entirely upon its interpre-

tation of the language in the National Agreement dealing

with seniority provisions and the decisions of the Commit-

tee and not on the basis of their respective ages.

3a

This Court agrees with the defendant.

—-—--- MEMORANDUM —— .

D&M’s first argument is that this Court may not de-

cide this case as it is preempted by § 301(a) of the Labor

Management Relations Act (the “LMRA”) which provides

as follows:

Suits for violation of contracts between an employer

and a labor organization representing employees .. .

may be brought in any district court of the United

States having jurisdiction of the parties...

In support of its argument, D&M cites the federal case

of Allis-Chalmers v. Lueck, 471 U.S. 202 (1985) which held

as follows:

The interests in interpretive uniformity and predict-

ability that require that labor-contract disputes be re-

solved by reference to federal law also require that

the meaning given in a contract phrase or term be

subject to uniform federal interpretation. Thus, ques-

tions relating to what the parties to a labor agree-

ment agreed, and what legal consequences were in-

tended to flow from breaches of that agreement, must

be resolved by reference to uniform federal law,

whether such questions arise in the context of a suit

for breach of contract or in a suit alleging liability in

tort. Any other result would elevate form over sub-

stance and allow patties to evade the requirements of

sec. 301 by relabeling the contract claims as claims

for tortious breach of contract.

The plaintiffs rely upon the decision of the United States

Supreme Court in Lingle v. Norge, Div. of Magic Chef, Inc.,

108 S.Ct. 1877, 1885, 486 U.S. 399, 100, L.Ed.2d 410 (1988)

which held:

As a general proposition, a state-law claim may de-

pend for its resolution upon both the interpretation of

a collective bargaining agreement and a separate state-

law analysis that does not turn on the agreement. In

such a case, federal law would govern the interpreta-

tion of the agreement but the separate state law analy-

sis would not thereby be preempted.

— iii itis

4a

Plaintiffs assert that, should interpretation of the Na-

tional Agreement be necessary, this Court must use fed-

eral law to assist it in the interpretation. The mere fact

that interpretation is necessary, they argue, is insufficient

to engage §301.

When a state law action does not depend upon the

interpretation of a collective bargaining agreement, the ac-

tion has been held to be “independent” of the agreement

for 5301 pre-emption purposes. Id. Lingle, 108 S.Ct. at p.

1883.

It is abundantly clear that but for the Union Agree-

ment the Plaintiffs would not have had any claim. Allied

had lost the contract that justified their employment. D&M

had won the contract based on the bid it made to Ford. It

planned to satisfy its obligations under the contract with

employees from within its company with known-perfor-

mance records and salary scales.

The plaintiffs never formally applied for any of the D&M

jobs and were rejected. Instead, they relied on their inter-

pretation of the National Agreement, a reliance which was

sustained for some of the plaintiffs and many Allied em-

ployees by the decision of the Committee. D&M contends

they have complied with the decision of the Committee in

hiring from the merged seniority lists. If D&M has not

done so, then this is still a matter to be determined by the

forum with jurisdiction over the collective bargaining agree-

ment.

State court is not the proper forum for such a determi-

nation. As a matter of law the defendant is entitled to

judgment.

ORDER

WEEREFORE IT IS HEREBY ORDERED AND AD-

JUDGED that the defendant’s Motion for Summary Judg-

ment be and hereby is GRANTED. This is a final and

appealable order and there is no just cause for delay.

This 9th day of May, 1994.

oa

/s/_ F. Kenneth Conliffe, Judge

Jefferson Circuit Court

Entered in Court: May 9, 1994

6a

EXHIBIT B

RENDERED: JUNE 7, 1996; 2:00 P.M.

NOT TO BE PUBLISHED

COURT OF APPEALS OF KENTUCKY

No. 94-CA-1176-MR

JOSEPH E. BIGELOW; WAYLAND BLAKELY;

SIMON BOLDEN; CARLTON BROWN;

WILLIAM DANNER; ENOCH DAVIS;

RANDALL DUVALL; TERRY G. HILLARD;

CHARLES HOGUE, JR.; LARRY HOWARD;

GEORGE HUDSON; RODNEY H. KELIEN;

JOE LEONARD; DALE LEWIS;

ADAM LUDLOW; DANIEL L. MILLER, JR.;

STEVE NIFONG; JACK PATE;

MORRIS A. ROSE;

BILL SANDERS; HARLEY STARNES;

PAUL STONER; WILLIAM STROUD

and RON WEAVIL - - - - - - - Appellants

versus

DALLAS & MAVIS FORWARDING COMPANY,

INC., a Subsidiary of JUPITER TRANSPOR-

TATION COMPANY - - - - - - Appellee

Appeal From Jefferson Circuit Court

Honorable Kenneth Conliffe, Judge

Action No. 92-CI-1187

OPINION—AFFIRMING

BEFORE: DYCHE, GARDNER and GUDGEL, Judges.

GARDNER, JUDGE: Appellants appeal from an order of

the Jefferson Circuit Court granting a summary judgment

for the appellee, Dallas & Mavis Forwarding Company (D

& M). The court ruled that as a matter of law, the appel-

lants, age discrimination claims were preempted by the

eee

7a

federal Labor Management Relations Act (LMRA). After

reviewing the record and the applicable law, this Court

concludes that the circuit court ruled correctly, and hence

affirms.

This action stems from a change in the transport com-

panies doing yard and decking work at the Ford Motor

Company’s (Ford) Kentucky Truck Plant (KTP) in Louis-

ville. Before March 1990, Allied Systems Inc. (Allied) held

the contract with Ford to perform the yard and decking

work at KTP. In 1990, D & M was awarded the contract to

perform the yard and decking work.

The appellants were individual employees of Allied who

were employed at KTP prior to D & M’s takeover. These

employees as well as D & M’s employees were members of

the Teamsters’ Union (Teamsters). The Teamsters, D &

M, and Allied were governed by a collective bargaining

agreement known as the National Master Automobile

Transporters Agreement (the national agreement) which

controlled the rights of the workers at KTP. Pursuant to

this agreement, the Teamsters and D & M had entered

into a local agreement which allowed employees in one job

classification to bid to transfer into another classification

when the employer determines that there is a vacancy

before the employer could hire outside people. The na-

tional agreement contained an arbitration/grievance proce-

dure for resolving disputes that arose between the workers

and employers.

The controversy in this case surrounds which employ-

ees would be called to work when D & M took over opera-

tions. Appellants have asserted that since they had more

seniority than D & M’s employees, they should have been

called to work. D & M called its own employees, and has

contended that pursuant to the agreements, it believed it

was required to call its own employees. The Teamsters

filed a grievance on behalf of the appellants pursuant to

the national agreement. An arbitration committee (the

committee) resolved the dispute and after considering the

agreements and hearing both sides, ruled that D & M had

8a

violated the national agreement and required D & M to

compile a list of employees from D & M and Allied based

on seniority. The committee held that D & M must offer

jobs in its operations to those employees on the list and

make whole all former Allied employees who accepted job

offers for the time they were unemployed on March 5, 1990,

until their employment by D & M in accordance with the

conunittee’s decision. D & M contested the committee’s

rulings in federal courts, but its action and subsequent

appeals were not successful. In December 1991, D & M

began to call former Allied employees to work in accor-

dance with the committee’s ruling. The employees were

called in keeping with the order in which they appeared on

the merged seniority list.

Appellants filed a complaint in Jefferson Circuit Court

on February 20, 1992, contending that D & M had refused

to hire them because of their age in violation of Kentucky

Revised Statute (KRS) 344.040. In June 1993, D & M

moved for summary judgment primarily on the ground that

appellants’ claims were preempted by Section 301 of the

LMRA. On May 9, 1994, the circuit court entered an order

granting the motion for summary judgment. It held that

the appellants, claims were preempted, and the court did

not directly address the merits of the appellants’ claims.

This appeal has followed.

Appellants contend in this appeal that their age dis-

crimination claims under Kentucky law are not preempted

by the LMRA. Thus, they maintain that the circuit court

erred in entering a summary judgment for D & M. We

believe that the circuit court correctly interpreted the law

regarding pre-emption and hence, affirm.

Section 301 of the LMRA provides, “[s]uits for violation

of contracts between an employer and a labor organization

representing employees in an industry affecting commerce

. may be brought in any district court of the United

States having jurisdiction of the parties... .” 29 United

States Code (U.S.C.) § 185(a). Whether a certain state

action is preempted by federal law is a question of congres-

3

9a

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

105 S.Ct. 1904, 1909, 85 L.Ed.2d 206 (1985). Congress did

not state explicitly to what extent it intended Section 301

of the LMRA to pre-empt state law. Jd. Thus, in such

cases courts sustain a local law unless it conflicts with

federal law or would frustrate the federal scheme or unless

the courts discern from the totality of circumstances that

Congress sought to occupy the field to the exclusion of the

states. Id.

When resolution of a state law claim is substantially

dependent upon the analysis of the terms of a collective

bargaining agreement, that claim must either be treated

as a Section 301 claim or be dismissed as preempted by

federal labor/contract law. Id., 105 S.Ct. at 1916; Caterpil-

lar, Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 2431,

96 L.Ed.2d 318 (1987); Adkins v. General Motors Corp.,

946 F.2d 1201, 1207 (6th Cir. 1991); Terwilliger v. Grey-

hound Lines, Inc., 882 F.2d 1033, 1036 (6th Cir. 1989) See

Lingle v. Norge Div. of Magic Chef, Inc. 486 U.S. 399, 108

S.Ct. 1877, 100 L.Ed.2d 410 (1988) ; Auvco Corp. v. Aero

Lodge No. 735, International Assoc. of Machinists and Aero-

space Workers, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126

(1968). Jf a state law claim is inextricably intertwined

with the consideration of the terms of a labor contract, the

claim is preempted. Allis-Chalmers Corp. v. Lueck, 105

S.Ct. at 1912. See Adkins v. General Motors Corp., 946

F.2d at 1209. If claims are founded directly upon rights

created by a collective bargaining agreement, Section 301

and federal law governs and preempts entirely. Id., at

1207; Terwilliger v. Greyhound Lines, Inc., 882 F.2d at

1036. As long as the state law claim can be resolved with-

out interpreting the agreement itself, the claim is indepen-

dent of the agreement for Section 301 preemption pur-

poses. Lingle v. Norge Div. of Magic Chef, Inc., 108 S.Ct.

at 1883. If state law purports to define the meaning of the

contract relationship, state law is preempted. Alllis-

Chalmers

Corp. v. Lueck, 105 S.Ct. at 1912. See Adkins v. Gen-

eral Motors Corp., 946 F.2d at 1207.

10a

A primary purpose of pre-emption in such cases is to

avoid conflicts among courts in the interpretation of collec-

tive bargaining agreements. Terwilliger v. Greyhound

Lines, Inc., 882 F.2d at 1036. Another purpose of pre-

emption is to prevent parties from avoiding the obligation

of submitting to arbitration that is included in collective

bargaining agreements. Allis-Chalmers Corp, v. Lueck,

105 S.Ct. at 1914; Terwilliger v. Greyhound Lines, Inc.,

882 F.2d at 1038. A court must see whether resolution of

a state law claim requires interpretation of the terms of a

collective bargaining agreement such that the claim should

have been decided by arbitration pursuant-to the terms of

the agreement and whether the claim is based upon rights

created by the collective bargaining agreement or under

state law. Terwilliger v. Greyhound Lines, Inc., 882 F.2d

at 1037.

In Kentucky, summary judgment should only be used

to terminate litigation when as a matter of law it appears

that it would be impossible for the respondent to produce

evidence at trial warranting a judgment in his or her favor

against the movant. Steelvest, Inc. v. Scansteel Service Cen-

ter, Inc.,, Ky., 807 S.W.2d 476, 483 (1991), quoting

Paintsville Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985);

Farmer v. Heard, Ky. App., 844 S.W.2d 425, 427 (1992).

Summary judgment is properly granted only when there is

no genuine issue as to any material fact and the movant is

entitled to prevail as a matter of law. Mullins v. Common-

wealth Life Ins. Co., Ky., 889 S.W.2d 245, 247 (1992); CR

56.03.

In the instant case, the circuit court correctly ruled

that the appellants, age discrimination claims under state

law were preempted. The matter regarding which workers

should be called by D & M to work clearly fell under the

collective bargaining agreements. A grievance was filed,

and in keeping with the national agreement, the contro-

versy was submitted to arbitration. The arbitration com-

mission ruled basically for the appellants and mandated

that D & M compile a dovetail list based on seniority of

both Allied’s employees and D & M’s employees and call

~ 1 A eh ela allt ea:

lla

those employees to work. D & M complied and called the

former Allied employees with proper seniority status back

to work. For various reasons, some of the former Allied

employees did not choose to return to work. Thus, the

appellants’ claims regarding who should have been called

to work and their discrimination claims are inextricably

intertwined with the terms of the agreements and to re-

solve this dispute, one must consider the agreements. The

primary purposes behind preserving arbitration also come

into play in the case at bar. The facts of the instant case

are distinguishable from Lingle v. Norge Div. of Magic

Chef, Inc., supra; O’Shea v. Detroit News, 887 F.2d 683

(6th Cir. 1989), and other cases relied on by the appel-

lants.' The circuit court correctly entered summary judg-

ment since as a matter of law, D & M was entitled to

prevail.

For the foregoing reasons, we affirm the order of the

Jefferson Circuit Court.

ALL CONCUR.

BRIEF FOR APPELLANTS:

Philip C. Kimball

Louisville, Kentucky

Harris J. Berman

Louisville, Kentucky

ORAL ARGUMENT FOR APPELLANTS:

Philip C. Kimball

Louisville, Kentucky

BRIEF FOR APPELLEE:

C. John Holmquist

Fannington Hills, Michigan

F. Larkin Fore

Louisville, Kentucky

ORAL ARGUMENT FOR APPELLEE:

C. John Holmquist

Farmington Hills, Michigan

' The appellants also address the merits of their discrimination

claim. we find it unnecessary to address this issue since the pre-

emption issue is dispositive. Further, we cannot address issues

not considered by the court below.

12a

EXHIBIT C

COURT OF APPEALS OF KENTUCKY

No. 94-CA-1176-MR

JOSEPH E. BIGELOW; WAYLAND BLAKELY;

SIMON BOLDEN; CARLTON BROWN;

WILLIAM DANNER; ENOCH DAVIS;

RANDALL DUVALL; TERRY G. HILLARD;

CHARLES HOGUE, JR.; LARRY HOWARD;

GEORGE HUDSON; RODNEY H. KELIEN;

JOE LEONARD; DALE LEWIS;

ADAM LUDLOW; DANIEL L. MILLER, JR.;

STEVE NIFONG; JACK PATE;

MORRIS A. ROSE; BIT” SANDERS;

HARLEY STARNES; PA JL STONER;

WILLIAM STROUD and RON WEAVIL - - = Appellants

versus

DALLAS & MAVIS FORWARDING COMPANY,

INC., a Subsidiary of JUPITER TRANSPOR-

TATION COMPANY - - - - - - Appellee

Appeal From Jefferson Circuit Court

Honorable Kenneth Conliffe, Judge

Action No. 92-CI-1187

ORDER DENYING PETITION FOR REHEARING

BEFORE: DYCHE, GARDNER, and GUDGBEL, Judges.

GUDGEL, JUDGE: The Court having considered the Peti-

tion for Rehearing and response thereto and being suffi-

ciently advised, it is ORDERED that the same is hereby

DENIED.

ENTERED: July 19, 1996

/s/_ Paul D. Gudgel

Judge, Court of Appeals

l3a

EXHIBIT D

SUPREME COURT OF KENTUCKY

96-SC-709-D

(94-CA-1176)

JOSEPH E. BIGELOW, Et. Al. Movants

versus

DALLAS & MAVIS FORWARDING COMPANY,

INC., a Subsidiary of JUPITER iereinouamad

TATIONCOMPANY - .- - - - Respondent

Jefferson Circuit Court

No. 92-CI-1187

ORDER DENYING DISCRETIONARY REVIEW

The motion for review of the decision of the Court of

Appeals is denied.

ENTERED May 14, 1997.

/s/_ Robert F. Stephens

Chief Justice

l4a

EXHIBIT E

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 3:95CV-568-S

JUDY WILD and

SALENADARNELL - - - - - - - - Plaintiffs

versus

HUTTIG SASH & DOOR COMPANY - - -_ Defendant

MEMORANDUM OPINION

This matter is before the court on the motion of the

plaintiffs, Judy Wild and Salena Damell, to set aside our

order entered in this case on February 23, 1996.

In our memorandum opinion entered with that order,

we held that 29 U.S.C. § 185, “§ 301” of the Labor Manage-

ment Relations Act, preempts the plaintiffs’ state law

claims. Upon reconsideration and further examination of

the arguments presented by the parties, it is apparent

that the plaintiffs’ claims are not preempted by § 301.

Thus our previous memorandum opinion and order en-

tered on February 23, 1996 will be set aside. The

defendant’s motion to dismiss will be addressed herein.

DISCUSSION

The plaintiffs were employees of the defendant. The

terms of their employment were governed by the collective

bargaining agreement (CBA) entered into by the defen-

dant and the International Union of Electronic, Electrical,

Salaried, Machine and Furniture Workers, Furniture Work-

ers Division Local 236. The complaint alleges that the

defendant discharged or laid-off the plaintiffs because of

their sex, in violation of K.R.S. § 344.040(1). Huttig con-

tends that these claims are preempted by federal labor

15a

law, 29 U.S.C. § 18 5, “§ 3 01” of the Labor Management

Relations Act. Therefore, it argues that the complaint

must be dismissed.!

Section 301 provides the federal district courts with

jurisdiction over “[s]uits for violation of contracts between

an employer and a labor organization representing em-

ployees in an industry affecting commerce. . . .” 29 U.S.C. §

185(a). “[T]he Supreme Court has held that section 301

preempts state law rules that substantially implicate the

meaning of collective bargaining agreement terms.” DeCoe

v. General Motors Corp., 32 F.3d 212 (6th Cir. 1994) (cit-

ing, Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,210 (1985);

Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962)).

“This rule is necessitated by the need for uniformity and

predictability in interpreting the meaning of Contract

terms.” Id.

The Sixth Court developed a two-step approach for de-

termining whether § 301 preemption applies. DeCoe, 32

F.3d at 216. We must examine whether the state law

claim may be proven without interpretation of collective

bargaining agreement terms and whether the right claimed

by the plaintiff is created by the collective bargaining agree-

ment or independently by state law. Id. (citing Terwilliger

v. Greyhound Lines, Inc., 882 F.2d 1033, 1037 (6th Cir.

1989), cert. denied, 495 U.S. 946 (1990)). “[I]f neither or

only one criterion is satisfied, section 301 preemption is

warranted.” Id. (citing Smolarek v. Chrysler Corp., 879 F.2d

1326, 1331 (6th Cir.), cert. denied, 493 U.S. 992 (1989).

The DeCoe court directed us to look to the elements of

the svate law claim in order to determine if it requires

interpretation of the collective bargaining agreement. Id.

' We note at the outset that the defendant’s challenge to the

plaintiffs’ claims is not appropriately presented as a motion for

summary judgment Knox v. Wheeling-Pittsburgh Steel Corp., 899

F., Supp. 1529,1533 (N.D. W.Va. 1995). However, the defendants

motion to dismiss is an appropriate challenge and we will exam-

ine the merits on that alternative basis. See, Id.

16a

at 217. Unlawful employment discrimination may be proved

through either disparate treatment or disparate impact.

White v. Rainbo Baking Co., 765 S.W.2d 26, 29 (Ky. App.

1989) (citing Rowe v. Cleveland Peneumatic Company, 690

F.2d 88 (6th Cir. 1982)). Inasmuch as the plaintiffs com-

plain of direct action taken against them on the basis of

their sex, their claims fall under disparate treatment analy-

sis. To prevail under this theory, a plaintiff must show

that the employer treated the plaintiff less favorably due

to the plaintiffs sex. Id. (citations omitted). This burden,

in itself, raises purely factual considerations of conduct

and motivation. Nor does the fact that the CBA generally

prohibits discrimination in the workplace “make the exist-

ence or the contours of the state law violation dependent

upon the terms of the private contract.” Smolarek, 879

F.2d at 1332.

It is necessary for the plaintiffs to prove their allega-

tions that Huttig violated their civil rights under Ken-

tucky law, independent of the collective bargaining agree-

ment. Id. at 1333. The defendant makes much of the

plaintiffs’ discussion of the terms of the CBA. It notes that

the plaintiffs do not have any state law entitlement to

seniority independent of the terms of the CBA and that

they clearly intend to rely upon the CBA to establish their

claims. However, as the plaintiffs note, to prevail on their

claim they need only prove that they suffered an adverse

employment action (here a layoff) and that this action was

motivated by gender discrimination. “Neither of the ele-

ments requires a court to interpret any term of a collec-

tive-bargaining agreement. “See, e.g., Lingle v. Norge Div.

of Magic Chef, Inc., 486 U.S. 399, 407 (1988) (applying

preemption analysis to state tort claim of retaliatory dis-

charge and see note 12 at page 413); see also, Smolarek,

879 F.2d at 1334 (applying same analysis to state law

discrimination claim). It will not suffice for the plaintiffs

to prove merely a breach of the CBA. Nor will it be neces-

sary to interpret the CBA or to choose from among differ-

ent interpretations of the CBA at the outset of this suit.

See, Smolarek, 879 F.2d at 1334 (noting that to resolve the

17a

plaintiffs state law discrimination claim the court need

only decide whether the defendant took adverse action be-

cause of improper motive). Notwithstanding the plaintiffs’

iteration of their rights under the CBA, this is a rather

typical claim of gender discrimination under Kentucky law.

In O'Shea v. Detroit News, 887 F.2d 683 (6th Cir. 1989),

the Sixth Circuit addressed the issue of preemption with

regard to a state law discrimination claim. In that case

the plaintiff noted in her complaint that the defendant had

discriminated against her in breaching the employment

agreement due to an improper motive. Jd. at 686. The

court applied the two-step analysis later spelled out in

DeCoe. It noted that employees have the right not to be

discriminated against based upon an illegal motive with-

out regard to a collective bargaining agreement. Id. at

687. The court held that the plaintiffs claims were not

preempted, because they were not based on the employ-

ment agreement. O’Shea is instructive when applied to the

naked claim in the case at hand.

In fight of our review of Lingle, Smolarek, and O’Shea,

we conclude that the plaintiffs’ claims are not preempted

by federal labor law. Proof of the plaintiffs’ claims does

not require interpretation of the terms of the CBA. Fur-

thermore, the right not to be discriminated against in em-

ployment decisions based on gender is independent of the

terms of the contract. See, e.g., O’Shea, 887 F.2d at 687.

Resolution of the claims here wig involve a state law analy-

sis which does not turn on the CBA. Thus applying the

test laid out in DeCoe, the plaintiffs’ claims are not pre-

empted.

The motion to set aside wiH be granted and the

defendant’s motion to dismiss will be denied by separate

order.

This 4th day of June, 1996.

ENTERED: June 4, 1996

/s/_ Charles R. Simpson, III

Charles R. Simpson, III, Chief Judge

United States District Court

EE, ee

18a

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT LOUISVILLE

Civil Action No. 3:95CV-568-S

JUDY WILD and

SALENADARNELL - - - - - - - - Plaintiffs

versus

HUTTIG SASH & DOOR COMPANY - - -_ Defendant

ORDER

This matter having come before the court on the mo-

tion of the plaintiffs, Judy Wild and Salena Darnell to set

aside the court’s order entered FebruarY 23, 1996 and the

court having considered said motion and being otherwise

sufficiently advised, IT IS HEREBY ORDERED that the

motion to set aside is GRANTED. Our order and memo-

randum opinion entered in this case on February 23, 1996

are SET ASIDE. IT IS FURTHER ORDERED that the

defendant’s motion to dismiss the complaint as preempted

by federal !abor law is DENIED.

IT IS SO ORDERED.

This 4th day of June, 1996.

/s/_ Charles R. Simpson, III

Charles R. Simpson, III, Chief Judge

United States District Court

ENTERED: June 4, 1996

cc: Counsel of Record

OPPOSITION

BRIEF

Supreme Court, U.S.

F IL E bD

sFp 12 97

No. 97-0287

CLERK

In The

Supreme Court of the United States

October Term, 1996

-

JOSEPH E. BIGELOW, WAYLAND BLAKELY, SIMON

BOLDEN, CARLTON BROWN, WILLIAM DANNER,

ENOCH DAVIS, RANDALL DUVALL, TERRY G.

HILLARD, CHARLES HOGUE, JR., LARRY HOWARD,

GEORGE HUDSON, RODNEY H. KELIEN, JOE

LEONARD, DALE LEWIS, ADAM LUDLOW, DANIEL

L. MILLER, JR., STEVE NIFONG, JACK PATE,

MORRIS A. ROSE, BILL SANDERS, HARLEY

STARNES, PAUL STONER, WILLIAM

STROUD, and RON WEAVIL,

Petitioners,

versus

DALLAS & MAVIS FORWARDING COMPANY, INC., a

subsidiary of JUPITER TRANSPORTATION COMPANY,

Respondent. ~

«

On Petition For Writ Of Certiorari

To The Supreme Court Of Kentucky

+

BRIEF IN OPPOSITION

¢

CHARFOOS, REITER, PETERSON,

Hoitmaguist & PitcHak, P.C.

C. JoHN Hotmauist, Jr. (P25996)

Counsel for Respondent

30500 Northwestern Hwy., Suite 400

Farmington Hills, Michigan 48334

(248) 626-7300

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

LISTING OF ALL COMPANIES AND

AFFILIATES OF RESPONDENT

Respondent Dallas & Mavis Forwarding Co. is an

unincorporated division of Active USA, Inc., an Indiana

corporation. The parent of Active USA, Inc. is Active

Transportation Company, a Kentucky general partner-

ship. Jupiter Transportation Company is no longer

involved in this matter.

ii

TABLE OF CONTENTS

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LISTING OF ALL COMPANIES AND AFFILIATES

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COUNTERSTATEMENT OF FACTS................. 1

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REASONS FOR DENYING THE WRIT............. 2

1. Neither the decisions below nor the record raises

the Question Presented in the Petition.......... 2

2. The unique facts of this case limit the applica-

tion of the standard sought by Petitioners.... 3

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TABLE OF AUTHORITIES

Page

CASEs:

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)... 2, 3, 5

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399

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STATUTES:

Labor Management Relations Act (29 U.S.C.

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BRIEF IN OPPOSITION

Respondent, Dallas & Mavis Forwarding Co.

(“D&M”) respectfully requests this Court to deny the

Petition for Writ of Certiorari seeking review of the Ken-

tucky Supreme Court’s Order denying discretionary

review of the Kentucky Court of Appeals’ decision. Those

opinions are not reported and are reprinted as Exhibit B,

Exhibit C and Exhibit D at pp. 6a-13a of the Appendix A!

to the Petition for Writ of Certiorari.

¢

COUNTERSTATEMENT OF FACTS

A. Facts.

Respondent D&M adopts the discussion of facts set

forth in the Kentucky Court of Appeals’ opinion found in

Exhibit B at App. 6a-11a.

B. Opinions Below.

The Memorandum and Order of the Jefferson Circuit

Court granting D&M’s Motion for Summary Judgment

and entering an Order to that effect is found in the

Appendix as Exhibit A, la-5a. The Kentucky Court of

Appeal’s opinion affirming the Order of the Jefferson

Circuit Court is found in the Appendix at Exhibit B,

6a-1la. Kentucky Court of Appeals Order denying Peti-

tion for Rehearing is found in the Appendix at Exhibit C,

12a. The Supreme Court of Kentucky’s Order Denying

1 References to the Exhibits in the Appendix to the Petition

are designated as “App. __a.”

Discretionary Review is found in the Appendix as Exhibit

D, 13a.

REASONS FOR DENYING THE WRIT

1. Neither the decisions below nor the record

raises the Question Presented in the Petition.

The sole question presented in the Petition is whether

this Court should adopt a “bright line” rule of law that

would preclude “preemption” by Section 301 of the Labor

Management Relations Act (29 U.S.C. §185(a)) for claims

of unlawful employment discrimination based on state

statutes which “mirror” applicable federal employment

discrimination statutes (p. i).2 This issue was not sim-

ilarly framed before any of the Kentucky courts. Indeed,

as noted by the Kentucky Court of Appeals in its Opin-

ion, the Petitioners contended that their age discrimina-

tion claims under Kentucky law were not preempted by

the LMRA (Exhibit B, App. 6a-7a). No request was made

to fashion such a rule. The Kentucky Court of Appeals

reviewed the preemption issue and followed this Court’s

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

(1985) and Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.

399 (1988) in affirming the dismissal of the case (Exhibit

B, App. 8a-10a).

Petitioners’ desire for a “bright line” rule arises from

their apparent frustration with the fact that courts will

”

2 References to the Petition are designated as “p. __.

actually engage in an in-depth examination of the pre-

emption issue which in numerous instances leads to the

finding that a particular claim is preempted under federal

labor law. The apparent rationale for the “bright line”

rule is the “savings” which would arise since there would

no longer be the “obvious waste of precious judicial

resources” in those cases where there is in fact a relation-

ship between a Section 301 claim and state law employ-

ment discrimination claims (p. 12).

In extending this invitation to the court, Petitioners

have ignored this Court’s decision in Allis-Chalmers v.

Lueck. This Court stated that the full scope of the preemp-

tive effect of federal labor contract law will be “fleshed

out” on a case-by-case basis. 471 U.S. at 220. Thus, the

request for a “bright line” rule which was not brought up

in of the proceedings before the Kentucky courts has, in

fact, already been addressed by this Court. There is no

need or urgency to revisit this issue.

2. The unique facts of this case limit the applica-

tion of the standard sought by Petitioners.

D&M submits that the facts in this case are unique

and are not suitable to resolve the “global” issue as set

forth in the Question Presented by the Petitioners.

Although the Petitioners styled their case in state court as

an age discrimination case, the case involves seniority,

and therefore, involves the collective bargaining agree-

ment in effect between the parties.

As the successful bidder for the yard operations,

D&M needed to staff its operation. As indicated in the

Petition and in the Court of Appeals Opinion, both D&M

and the other employer (Allied) were signatory to the

same collective bargaining agreement to which the local

Teamsters Union (Local 89) was signatory (p. 4; Exhibit B,

App. 7a).

The issue was which group of employees would be

entitled to perform the work. This case did not involve

hiring from the general public nor did it involve any

review of an applicant pool by D&M. All the parties, the

Petitioners, the companies, and the union, knew that one

of the two groups of employees would perform the work.

The issue of which group of employees was ultimately

submitted to and resolved by a board of arbitration pur-

suant to the terms of the contractual grievance and arbi-

tration procedure.

D&M chose to use its own employees, and subse-

quently found that its action was not the correct inter-

pretation in implementation of the seniority provisions of

the contract (Exhibit B, App. 7a-8a). D&M was forced to

“dovetail” by seniority the employees of both companies.

Since almost all of the Petitioners and other Allied

employees were senior in terms of length of service to the

D&M employees, they were able to “bump” or replace

them through the use of seniority (p. 5). The Petitioners

and the other Allied employees were awarded backpay

and other contractual benefits to which they were

deemed to be entitled.

A review of the Statement of the Case in the Petition

underscores the unique factual nature of this case.

Nowhere in the recitation of material facts is there any

suggestion that the Petitioners filled out applications or

_— —————vVo_

otherwise took actions consistent with seeking to be con-

sidered for employment with D&M. To the contrary, Peti-

tioners and other employees believed it was their right

under the collective bargaining agreement to “follow the

work” without regard to the particular company that was

contracted to perform the yard and decking operations

(p. 5). The facts in this case do not deal with an unlawful

refusal to hire because of age, but as Petitioners readily

acknowledge, a dispute over the improper application of

the seniority provisions of the collective bargaining

agreement as to which one of the two groups of

employees would be entitled to perform the work for

D&M.

The Petitioners’ own Statement of Facts is consistent

with the facts as recited in the Kentucky Court of Appeals

Opinion. As the Court of Appeals stated in its Opinion,

the controversy surrounded which employees would be

called to work when D&M took over operations (Exhibit

B, App. 7a). The dispute was submitted to arbitration and

after a hearing, the arbitration committee ruled that D&M

had violated the National agreement and was obligated

to offer jobs to Petitioners and other employees (Exhibit

B, App. 7a-8a). The Court of Appeals correctly found that

the Petitioners’ claims regarding who should have been

called to work and regarding their age discrimination

claims are inextricably intertwined with the terms of the

collective bargaining agreement. In order to resolve this

dispute, one had to consider the collective bargaining

agreement (App. 11a). The Kentucky Court of Appeals’

action was consistent with this Court’s decisions in Allis-

Chalmers and in Lingle.

D&M finds itself in the unique position of being sued

by Petitioners for a purported refusal to hire because of

age discrimination in violation of Kentucky state law

when this same group was given seniority rights with

D&M pursuant to an award of the arbitration committee.

Not only were the Petitioners offered the opportunity to

work, but they were “made whole” as required under the

collective bargaining agreement.

Thus, what is styled by the Petitioners as an “age”

claim is in reality a seniority claim. As such, the seniority

claim was submitted to and resolved by the mechanism

set forth in the collective bargaining agreement which_

was final and binding upon all the parties including

Petitioners. The only apparent purpose of the Petition is

to pursue an academic exercise of the propriety of estab-

lishing a “bright line” standard, even in the face of this

Court’s decisions to the contrary. The uniqueness of the

facts of this case renders it inappropriate for review by

this Court.

CONCLUSION

For these reasons, the Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

C. JoHN Ho tmautst, Jr.

Attorney for Respondent

30500 Northwestern Hwy., Ste. 400

Farmington Hills, Michigan 48334

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