Appendix — Lewis v. Local 382, International Brotherhood of Electrical Workers

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vo 29 825 NOVI 51999

Urrilt UF THE CLERK

In 0) he

Supreme Court of the Chited States

MICHAEL O. LEWIS, As Personal Representative

of the Estate of N.G. Lewis, Deceased,

Petitioner,

LOCAL 382, INTERNATIONAL

BROTHERHOOD OF

ELECTRICAL WORKERS (AFL-CIO),

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF

SOUTH CAROLINA

Appendix to Petition for Writ of Certiorari

Henry Hammer Scott Elliott

Counsel of Record ELLIOTT & ELLIOTT, P.A.

Howard Hammer Post Office Box 1960

HAMMER, HAMMER, Columbia, SC 29202

CARRIGG & POTTERFIELD (803) 771-0555

1634 Main Street, Suite 201

Post Office Box 1421

Columbia, SC 29202

(803) 799-8600

Counsel for Petitioner

THE LEX GROUP ¢ 1205 East Main Street @ Suite 2 East ¢ Richmond, VA 23219

(804) 644-4419 @ (800) 856-4419 # Fax: (804) 644-3256

—— nw

TABLE OF CONTENTS

Appendix to the Petition

Opinion,

The Supreme Court of South Carolina

COAMEOG Fly 12, UDP i isisccicsscisssicatscsdeccssssiosse App. |

Order,

The Supreme Court of South Carolina

Re: Granting Petition for Writ

entered April 9, 1998 ............ccccccccsccssccossecooees App. 11

Opinion,

Court of Appeals of South Carolina

entered October 14, 1996.00.00. cceccecceseeseeees App. 12

Order,

State of South Carolina County of Lexington

Court of Common Pleas

Re: Directing Entry of Judgment

entered April 14, 1995..............ccccccssscsscsoseeees App. 45

Order,

State of South Carolina County of Lexington

Court of Common Pleas

Re: Denying Defendants Post Trial Motions

entered April 13, 1995... cccecsscsceeceees App. 46

Order,

United States District Court for

The District of South Carolina Columbia Division

Re: Removal

entered August 9, 1989.............ccccccssssssosseees App. 50

App. i

Order,

The Supreme Court of South Carolina

Re: Denying Petition for Rehearing

entered August 17, 1999.............csscscssssssees

Order,

Court of Appeals of South Carolina

Re: Denying Petition for Rehearing

entered February 21, 1997 ...............s0000000

Order,

Court of Appeals of South Carolina

Re: Denying Suggestion for Rehearing En Banc

entered February 21, 1997 ............cssssseeseees

Petition for Rehearing,

Supreme Court of South Carolina

filed Sully 27, BDGD acsccccssncsanediannsinncnseasnscenes

Form of Verdict,

Court of Common Pleas

dined Jame 18, OOF ssccccscseessscatsendteanernes

Answer to Complaint,

United States District Court

Columbia Division of South Carolina

Gated June 2B. 1DGD <cccasisondencnatessntisnnatensciies

Motion to Remand,

United States District Court

Columbia Division of South Carolina

dated Seema 21, UDG sccrcisccccctsccssncsnssscamssness

App. ii

oa i i i i ae ae i!

Memorandum in Support of

Motion to Remand,

United States District Court

Columbia Division of South Carolina,

with attachment,

Ie POO 20, FIIs csssccocsesescecossisssaccceee App. 81

Attachment:

Opinion,

Walter W. Rody v. Midland Enterprises, Inc.

and Port Allen Marine Services, Inc.

entered May 6, 1966........................ App. 87

Petition for Removal,

United States District Court

Columbia Division of South Carolina

eh App. 91

Complaint,

Court of Common Pleas

County of Lexington

GOGOE ATL 1B, 1989... .occsscccecccccsceccesessssese App. 95

U.S. Constitution, Article VI... ceccccccccccececesescseee. App. 98

U.S. Constitution, Amendment X.........ccccccccsecccsesees. App. 98

Ne EE gece chcisssdondavasytacendeones soetenneessneeee App. 98

I A BM hp ycoa ss cencsdasenbancecnacoxssoavicannentasesunces App. 99

a sb awcicanivshobdonnvietsecedoceassiveasiovees App. 99

te oi acastssuansisdessdeorseadevanavenevenes App. 100

S.C. Code Ann. § 41-7-70) ..........cecccscssssscsscossesssseee, App. 100

S.C. Code Ann. § 41-7-80

S.C. Code Ann. § 41-7-90

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eee eee eee eee eee ee eee eee ee eee eee eee ey

App. iv

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Michael O. Lewis, As Personal Representative of the Estate

of N.G. Lewis, Deceased,

Petitioner,

Vv.

Local 382, International Brotherhood of Electrical Workers

(AFL-CIO), Davis Self, Larry Poole, Jerome Jenkins, Doris

M. Jones, Bill Davis, John C. Davis and Ronald Goodale,

Defendants,

Of Whom Local 382, International Brotherhood of Electrical

Workers (AFL-CIO) is,

Respondent

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS

Appeal From Lexington County

William P. Keesley, Circuit Court Judge

Opinion No. 24965

Heard December 15, 1998 - Filed July 12, 1999

ENTERED: JULY 12, 1999

AFFIRMED IN RESULT

Henry Hammer and Howard Hammer, of Hammer,

Hammer, Carrigg & Potterfield, of Columbia, and Scott

Elliott, of Elliott and Elliott, of Columbia, for petitioner.

Herbert Buhl, III, of Columbia, and Terry R. Yellig,

of Sherman, Dunn, Cohen, Leifer, & Yellig, of Washington,

App. |

D.C., for respondent.

WALLER, A.J.: We granted certiorari to review the

Court of Appeals’ opinion in Lewis v. Int'l Brotherhood of

Electrical Workers, 324 S.C. 412, 481 S.E.2d 135 (Ct. App.

1997). We affirm in result.

FACTS'

Lewis, an electrician,?> was a member of the

International Brotherhood of Electrical Workers (IBEW),

Local #382, for approximately 30 years. In 1987, his

membership in the union lapsed when he continued to work

for an employer which had been declared "in difficulty" by

the IBEW. In February, 1988, the IBEW informed Lewis he

was ineligible to receive retirement benefits from the IBEW

Pension Benefit Fund because he was no longer a member in

good standing.* Lewis brought this action seeking damages

for violation of the South Carolina Right-to-Work Act,

S.C.Code Ann. §§ 41-7-10 through -90 (Rev. 1986

Lewis vy. Int'l Brotherhood of Electrical Workers

& Supp. 1997).° The jury returned a verdict in favor of

Lewis against the union and awarded $82,560.00 in actual

The reader is directed to the Court of Appeals’ opinion for a

more complete recitation of the facts.

. Lewis died in 1990; his son Michael has been substituted as

plaintiff.

; IBEW's Constitution prohibits members from "[wlorking for

any ... company declared in difficulty" with the union. Art. VII, § 11.

: Article XII, Section 1(a)(1) of Union's constitution provides for

pension benefits to "A" members of the IBEW who are in "continuous

good standing with twenty (20) or more years immediately preceding his

application, who has attained the age of sixty-five (65) years."

5 He also filed a claim for outrage; the jury returned a verdict for

the defendants on this claim.

App. 2

damages and $25,000 in punitive damages. In a well

reasoned opinion, Judge Anderson, writing for a majority of

the Court of Appeals, held Lewis'claims were preempted by

federal law. We agree and, accordingly, affirm in result.°

ISSUES

l. Is the federal court's order remanding

to state court, preclusive on the preemption

issue?

+ Is Lewis’ claim preempted under 28

U.S.C. § 185 of the Labor Management

Relations Act (LMRA)?

3. Should the Court of Appeals have

addressed Lewis' claim under the South

Carolina Right-To-Work Act?

4. Is Lewis' claim preempted under §

514(a) of the Employee Retirement Income

Security Act (ERISA), 29 U.S.C.§ 1 144(a)?

1. PRECLUSION

We concur in the Court of Appeals'holding that the

federal court's order remanding to state court is not

preclusive on the issue of preemption.’

7 Except as otherwise noted herein, we agree with and adopt the

reasoning set forth in the Court of Appeals' opinion. Readers are referred

to that opinion for a more detailed and thorough discussion of the issues.

: Lewis initially filed this action in state court, and the matter was

removed to federal court by the IBEW.. In response to Lewis’ motion, the

district court remanded to state court, finding removal had been

improvident.

App. 3

As noted by the Court of Appeals, the Fourth Circuit has

specifically held a district court's findings incident to an

order of remand have no preclusive effect. Nutter v.

Monongahela, 4 F.3d 319 (4th Cir. 1993)(district court's

holding that ERISA and LMRA did not preempt not prevent

defendant from raising preemption as a defense in state

court).® Accordingly, the Court of Appeals properly held the

federal court's remand order was not preclusive. Accord

Nichols v. Amalgamated Clothing, 305 S.C. 323~ 408 S.E.2d

237 (1991)(addressing merits of preemption issue after

remand from federal court).

2. PREEMPTION UNDER LMRA

If a state-law cause of action does not exist

independently of a labor contract, it is pre-empted by Section

301 of the Labor Management Relations Act ( LMRA).

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S.Ct.

1904, 85 L.Ed.2d 206 (1985); Nash v. AT & T Nassau

Metals, 298 S.C. 428, 381 S.E.2d 206 (1989); Butts v. AVX

Corp., 292 S.C. 256, 355 S.E.2d 876 (Ct.App.1987). In Nash

v. AT & T Nassau Metals, 381 S.E.2d 206, 208, 298 S.C. 428

(1989), we stated:

: The rationale for holding a district court's remand order has no

preclusive effect on the issue of preemption is that such remand orders

are not subject to appellate review under 28 U.S.C. § 1447(d). Since

Nutter, the United States Supreme Court decided Quackenbush vy.

Allstate Ins. Co., 517 U.S. 706, 116 S.Ct. 1712,135 L.Ed. 2d 1 (1996) in

which it held a remand order which is not based upon either subject

matter jurisdiction or defects in the removal procedure (i.e., pursuant to

§1447(d)), is subject to appellate review such that it may be given

preclusive effect. (Quackenbush involved a remand based on abstention

principles). Here, it is impossible to determine for certain the basis of the

federal court's remand order as it merely states removal was improvident.

Accordingly, we decline to give it preclusive effect.

App. 4

This test is one of whether the state claim

exists independently of the collective

bargaining agreement or whether it is

"inextricably intertwined" with a

consideration of the terms of the agreement. If

the state claim does not exist independently of

the agreement, it is preempted by federal law.

The Court of Appeals found Lewis’ claim was

Substantially dependent upon an analysis of the IBEW

constitution because interpretation of the constitution was

essential to a determination of whether Lewis had any

property rights in the pension benefit fund. We agree.

Lewis' tort claim intrinsically relates to the nature of

the IBEW constitution. His complaint states that the IBEW,

"In violation of the Right-To-Work Act, attempted to

interfere with [Lewis'] exercise of his Right-To-Work and

did, thereby cause him to lose his pension benefits," and that

as a result Lewis "has suffered the loss of his pension

benefits." It is impossible to ascertain, without reference to

IBEW's constitution, whether the union acted properly in

denying Lewis his pension benefits. Accordingly, we concur

with the Court of Appeals’ analysis that resolution of the case

was "substantially dependent" upon the union's constitution

SO as to be preempted under the LMRA.?

9

We agree with the Court of Appeals that our holding in Nichols

v. Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC,

305 S.C. 323~ 408 S.E.2d 237 (1991) is not controlling. The United

States Supreme Court, in Wooddell vy. International Brotherhood of Elec.

Workers Local 71, 502 U.S. 931 112 S.Ct. 494~ 116 L.Ed.2d 419 (1991),

extended the preemption provision of the LRMA to union constitutions.

Nichols specifically held the employee's complaint was not preempted

because the circuit court needed only to focus upon ACTWU's

constitution, by-laws, and prior practices. Accordingly, to the extent

Nichols conflicts with Wooddell, it is overruled.

We likewise agree with the Court of Appeals’ analysis regarding

this Court's opinion in Kimbrell v. Jolog Sportswear, Inc., 239 S.C. 415~

123 S.E.2d 524 (1962), in which we held an action for wages under this

state's statutory law was not preempted by the NLRA. In Kimbreil, there

App. 5

Finally, Lewis relies on this Court's opinion in Layne

v. Int'l Brotherhood of Elec. Workers, 271 §.C. 3462 247

S.E.2d 346 (1978), in which we held, under similar facts, the

plaintiffs state law claim under the Right-To-Work Act was

not preempted by the Labor-Management Reporting and

Disclosure Act of 1959 (LMRDA), 29 U.S.C. s 411 et seq.

Layne dealt with Section 413 of the LMRDA which

specifically states, "Nothing contained in this subchapter ( 29

U.S.C. §§ 411- 415) shall limit the rights and remedies of

any member of a labor organization under any State or

Federal law or before any court or other tribunal, or under

the constitution and bylaws of any labor organization."

However, Section 413 of the LMRDA limits its application

to that subchapter of the LMRDA.'° Section 413 of the

LMRDA does not apply to Section 301 of the LMRA. To

hold otherwise would completely eviscerate the preemption

provisions of Section 301 of the LMRA.!!

was no conflict with federal jurisdiction and the National Labor Relations

Act afforded no remedy to plaintiffs for the wrongs done them. Here,

there is a conflict with federal jurisdiction, inasmuch as the Court would

be required to interpret the union's constitution. Moreover, in the present

case, counsel for the IBEW advised the Court at oral argument that Lewis

may file a claim for unfair labor practices with the National Labor

Relations Board, or may have a claim for unfair labor practices under

section 301 of the LMRA. Accordingly, unlike the plaintiff in Kimbrell,

Lewis is not without a remedy.

ss The subchapter of the LMRDA in question, § 411(a)(5) deals

with due process measures a union member must be afforded prior to

being disciplined. As we read Section 413, it was intended to permit

union members the procedural due process afforded by state law if it was

greater than that permitted by Section 411.

. Moreover, the issue of Section 301 preemption was not raised in

Layne. This Court will not generally raise issues sua sponte. Smith vy.

Phillips, 318 S.C. 453, 458 S.E2d 427 (1995)(but for very few

exceptional circumstances, appellate court will not sua sponte raise

issues).

App. 6

3. PREEMPTION UNDER ERISA

Finally, a majority of the Court of Appeals held

Lewis' claim was preempted by Section 514(a) of ERISA as

his claim for damages "related to" an employee benefit plan

within the scope of ERISA's preemption clause.’ It held the

resolution of Lewis' claim directly affected the pension fund

as it "potentially alters the criteria for receipt of benefits."

481 S.E.2d at 142. We agree.

Any and all State laws insofar as they relate to

employee benefit plans are preempted by ERISA. 29 U.S.C.

§ 1144(a); Duncan v. Provident Mut. Life Ins. Co. of

Philadelphia, 310 S.C. 4652 427 S.E.2d 657 (1993). This

Court has recognized that the pre-emptive effect of ERISA is

a broad one. Baker Hosp. v. Isaac, 301 S.C. 248, 391 S.E.2d

549 (1990). A state law "relates to" an ERISA-governed

employee benefit plan, "if it has a connection with or

reference to such a plan." Shaw v. Delta Air Lines, Inc., 463

U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983).

Further, a state law "relates to" an ERISA plan if the rights

or restrictions it creates are predicated on the existence of

such a plan. Ingersoll-Rand Co. vy. McClendon, 498 U.S.

133, 111 S.Ct. 478, 112 L.Ed.2d474(1990). However, those

State actions which affect employee benefit plans in "too

tenuous, remote or peripheral a manner" do not relate to the

plan. Shaw v. Delta Air Lines, supra.

A state rule of law may be preempted even though it

has no direct nexus with ERISA plans if its effect is to

dictate or restrict the choices of ERISA plans with regard to

their benefits, structure, reporting and administration, or if

allowing states to have such rules wouid impair the ability of

a plan to function simultaneously in a number of states.

Keystone Chapter, Assoc. Builders v. Foley, 37 F.3d 945,

- There is no dispute but that Lewis'pension plan is an "employee

benefit plan" within the meaning of ERISA, 29 U.S.C.§§ 1002(2)(A)(I) &

1002(3).

App. 7

Pe a

955 (3d Cir. 1994), cert. denied, __. ; US.___ 1115 S.C.

1393, 131 L.Ed.2d 244 (1995).

Here, it is inescapable that Lewis’ claim is predicated

upon the existence of IBEW's plan, i.e., is premised on the

notion that the union's violation of the Right-To-Work Act

resulted in the loss of his pension. Accordingly, we affirm

the Court of Appeals'ruling.

In dissent, Judge Cureton points to a recent United

States Supreme Court opinion narrowing the scope of

ERISA preemption. New York State Conference of Blue

Cross & Blue Shield Plans v. Travelers Ins. Co., 514 US.

645, __, 115 S.Ct. 1671, 16771 131 L.Ed.2d 695 (1995). In

Travelers, the Court noted the listarting presumption that

Congress did not intend to supplant state law, 514 U.S. at

654, 115 S.Ct. at 1676, stating if "relate to" were taken to

extend to the furthest stretch of its indeterminacy, then for all

practical purposes pre-emption would never run its course,

for “really, universally, relations stop nowhere." The

Travelers court acknowledged, however, that "a state law

might produce such acute, albeit indirect, economic effects,

by intent or otherwise, as to force an ERISA plan to adopt a

certain scheme of substantive coverage or effectively restrict

its choice of insurers, and that such a state law might indeed

be pre-empted under Section 514. 514 U.S. at 668, 115 S.Ct.

at 1683 Even under the more narrow view of Travelers.

allowing Lewis' claim in this case would essentially render

the union liable for the benefits, notwithstanding its

constitutional provisions to the effect that only members in

good standing are entitled to benefits. As such, it would, by

indirect means, force the union to adopt a certain scheme of

substantive coverage contrary to its constitutional provisions.

Such a holding is contrary to Travelers.

Finally, the dissent cites several cases for the

proposition that ERISA does not preempt state claims where

employees merely seek lost pension benefits as a measure of

damages. See Pizlo v. Bethlehem Steel Corp ., 884 F.2d 116

(4th Cir.1989); Hospice of Metro Denver, Inc. v. Group

App. 8

Health Ins.. of Oklahoma, Inc., 944 F.2d 752 (10th

Cir.1991); Howard v. Indiana Michigan Power Co., 812

F.Supp. 135 (S.D.Ind. 1992); Schlenz v. United Airlines, Inc.,

678 F.Supp. 230 (N.D.Cal.1988). We are unpersuaded by

this authority. The dissent directly cites Pizlo for the

following proposition:

The claims here would not submit [the

employer] to "conflicting employer

obligations and variable standards of

recovery", "determine whether any benefits

are paid" nor "directly affect the

administration of benefits under the plan."

The claims do not bring into question whether

Plaintiffs are eligible for plan benefits, but

whether they were wrongfully terminated

from employment after an alleged oral

contract of employment for a term.

324 S.C. at 436,481 S.E.2d at 147. Here, Lewis' claim would

subject the IBEW to conflicting obligations (i.e., it is liable

under state law for the pension, but it is not liable under its

constitution for the pension), and would bring into question

whether or not Lewis was eligible for plan benefits.

Accordingly, we do not find Pizlo dispositive. Further, the

other case directly quoted by Judge Cureton, Hospice of

Metro Denver, Inc. v. Group Health Ins. of Oklahoma, Inc.,

944 F.2d 752 (10th Cir.1991), did not involve beneficiaries

of an ERISA plan. Moreover, Hospice is contrary to this

Court's recent opinion in Baker Hospital v. Isaac, 301 S.C.

248, 391 S.E.2d 549 (1990)(holding ERISA preempted a

hospital's contract, promissory estoppel, negligence, and

misrepresentation claims).

App. 9

4, RIGHT-TO-WORK ACT

The Court of Appeals held Lewis had failed to state a

cause of action as the conduct he complained of did not

constitute a violation of the Right-To-Work Act.” Given its

holding that Lewis' claim was preempted, it was unnecessary

for the Court of Appeals to address this issue. Accordingly,

we vacate the portion of the Court of Appeals’ opinion

holding Lewis failed to state a claim under the Right-To-

Work Act.

CONCLUSION

We concur with the majority opinion of the Court of Appeals

that Lewis' claims are preempted by both the LMRA and

ERISA, since he is essentially seeking to recover his pension

benefits, albeit under the guise of a Right-To Work claim.

Accordingly, we affirm, in result. However, to the extent the

Court of Appeals addressed the viability of Lewis' state law

claim, its opinion is vacated.

AFFIRMED IN RESULT. ®

FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ.,

concur.

” We also granted certiorari to review the Court of Appeals’

unpublished opinion in this matter, Op. No. 96-UP-335 (S.C. Ct. App.

filed October 15,1996), concerning Lewis' entitlement to attorneys’ fees.

In light of our holding in this case, we affirm the Court of Appeals’

dismissal of that appeal as moot.

App. 10

icy hatin teenie sill

bi ato Mime

THE SUPREME COURT OF SOUTH CAROLINA

Michael O. Lewis, as Personal Representative of the Estate

of N.G. Lewis, Deceased,

Petitioner,

V.

Local 382, International Brotherhood of Electrical Workers

(AFL-CIO), Davis Self, Larry Poole, Jerome Jenkins, Doris

M. Jones, Bill Davis, John C. Davis and Ronald Goodale,

Defendants,

of whom Local 382, International Brotherhood of Electrical

Workers (AFL-CIO) is

Respondent.

ENTERED: APRIL 9, 1998

ORDER

We grant the petition for a writ of certiorari to review

the Court of Appeals’ decision in Lewis v. Local 382. Int’!

Brotherhood of Electrical Workers (AFL-CIO), Op. No. 96-

UP-335 (S.C. Ct. App. filed October 15, 1996). The parties

Shall proceed to serve and file the appendix and briefs as

provided by Rule 226(h), SCACR.

/s/ Ernest A. Finney, Jr. C.J.

/s/ Jean H. Toal A.J.

/s/James E. Moore A.J.

/s/ John H. Waller, Jr. A.J.

/s/ E. C. Burnett, II] A.J.

Columbia, South Carolina

April 9, 1998

App. 11

Michael O. LEWIS, as Personal Representative of the Estate

of N.G. Lewis, Deceased, Respondent,

V.

LOCAL 382, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS (AFL-CIO), Davis Self, Larry

Poole, Jerome Jenkins, Doris M. Jones, Bill Davis, John C.

Davis and Ronald Goodale, Defendants,

of whom Local 382, International Brotherhood of Electrical

Workers (AFL-CIO) is Appellant.

No. 2573.

Court of Appeals of South Carolina.

Heard Sept. 12, 1996.

Decided Oct. 14, 1996.

ENTERED: October 14, 1996

Herbert E. Buhl, III, Columbia; and Terry R. Yellig,

of Sherman, Dunn, Cohen, Leifer & Yellig, Washington,

D.C., for appellant.

Henry Hammer and Howard Hammer, both of

Hammer, Hammer, Carrigg & Potterfield; and Scott Elliott,

Columbia, for respondent.

ANDERSON, Judge:

This is an action for an alleged violation of the South

Carolina Right-to-Work Act.' The jury returned a verdict

against Local 382 of the International Brotherhood of

Electrical Workers (Local 382) in the amount of $82,560

' S.C. Code Ann. §§ 41-7-10 through -90 (Rev. 1986 & Supp.

1995).

App. 12

} actual damages and $25,000 punitive damages. A defense

4 verdict was returned in favor of the other defendants. The

: trial court denied Local 382's post-trial motions. The union

appeals. We reverse.

FACTS/PROCEDURAL BACKGROUND

In September of 1948, N.G. Lewis joined Local 382

and remained a member until 1986. When he was initiated

as a member of Local 382, Lewis signed an oath that he

would abide by all of the provisions of the IBEW

Constitution, its rules and laws, as well as those of Local

382. Article XXVII, Section 1, Subsection 17 of the IBEW

Constitution prohibits members from "(working for any ...

company declared in difficulty with a [Local Union] or the

I.B.E.W., in accordance with [the] Constitution."

In 1986, Lewis was employed by United Electric

Company (United) as a foreman when United refused to sign

a collective bargaining agreement with Local 382. Local 382

then petitioned the National Labor Relations Board to

conduct a representation election among the employees of

United to determine whether they wanted Local 382 to be

certified as their exclusive bargaining representative. A

majority of those United employees voted not to certify

Local 382 as their exclusive bargaining representative.

On April 11, 1986, Local 382's business manager,

Davis S. Self, wrote a letter to United employees, including

Lewis, who were members of Local 382. In the letter, Self

informed the members that United had been declared "in

difficulty". by the IBEW International President.

Furthermore, the letter advised each Local 382 member that

his membership in Local 382 could be in jeopardy if he

continued his employment with United. Lewis was a

member of the Executive Board of Local 382 at the time this

notice was sent.

In a memo dated July 23, 1986, Lewis, citing

personal and health reasons, resigned from the Executive

App. 13

Board of Local 382 effective July 25, 1986. Self sent Lewis

a letter inviting him to attend_the Union's Executive Board

meeting on September 12, 1986, at which time a complaint

concerning his employment by United would be discussed.

After November 1986, Lewis ceased paying his

union membership dues. As a result, Lewis was dropped as

a member of Local 382 and the IBEW after he failed to pay

his dues for six months, According to Article XXIII, Section

4 of the IBEW Constitution, "any member indebted to his

[Local Union] for six (6) months! full dues shall be dropped

from membership by the [Financial Secretary)..."

Furthermore, Article XXIII, Section 5 provides _ that

"[m]embers in arrears forfeit all rights and previous standing

in the I.B.E.W."

In December of 1986, Ronald Goodale, a Local 382

member, filed internal union charges against Lewis because

he continued to work for United in violation of Article

XXVII, Section 1, Subsection 17 of the IBEW Constitution.

On December 19, 1986, pursuant to Goodale's charges, Local

382's Recording Secretary notified Lewis a hearing before

the Union's trial board would be convened on January 9,

1987, at which time Lewis could answer the charges against

him. ‘:

At the hearing, Lewis admitted he was working for

United. He argued, however, he could not travel, due to a

medical condition, to Augusta, Georgia to work for a

contractor covered by the terms and conditions of a

collective bargaining agreement negotiated by the IBEW

Local Union in that area. The trial board agreed to delay,

until it received information about the medical condition of

Lewis, its decision whether Lewis had violated the IBEW

Constitution by continuing to work for United after it was

declared "in difficulty." On January 19, 1987, Dr. Richard

T. Alia wrote a letter advising that Lewis had been diagnosed

with ulcerative proctitis in 1982, but that as of May 15, 1984,

the last time Lewis was seen by Dr. Alia's late partner, the

proctitis was in remission.

App. 14

socstonssscaeesill

On February 13, 1987, the trial board again

considered the charges against Lewis in light of Dr. Alia's

letter. The trial board decided Lewis had violated the IBEW

Constitution by continuing to work for United after it was

declared "in difficulty."" The board further decided to fine

Lewis $2000.00, but indicated the fine would be suspended

if Lewis terminated his employment by United and sought

employment with a contractor who was a party to a

collective bargaining agreement with Local 382 or some

other IBEW Local Union.

In a letter dated February 16, 1987, the Local 382

Recording Secretary notified Lewis of the trial board's

disposition of the charges against him. The letter advised

Lewis the $2,000.00 fine would be suspended if he would

terminate his employment with United and accept

employment with a union contractor within 30 days. Self,

Local 382's business manager, told Lewis he could obtain

employment with a union contractor in Augusta, Georgia.

Lewis, who continued to work for United, never paid

the $2,000.00 fine, nor did he appeal the trial board's

decision to the IBEW Vice President who has jurisdiction

over Local 382. Additionally, Local 382 never took any

action to collect the fine.

In a February 8, 1988 letter, the IBEW informed

Lewis he was ineligible to receive retirement benefits from

the IBEW Pension Benefit Fund because he was no longer a

member in good standing.” Article XII, Section *138

2

The letter, which was signed by Jack F. Moore, an IBEW

Trustee, in relevant part provided:

Records in this office indicate that you were an "A"

member of the IBEW from September 1948 through

November 1986. When you did not tender any further

dues thereafter, you were dropped from membership

and, as you know, when a member of the IBEW is

dropped from membership, he immediately forfeits any

claim to IBEW pension or death benefits as a

consequence of his "A" membership in the IBEW.

App. 15

1(a)(1)of the IBEW Constitution sets forth the criteria for

receiving retirement benefits from the IBEW Pension Benefit

Fund. That section in pertinent part provides:

Sec. 1. An "A" member who retires from the

electrical trade after January 1, 1967, shall be

entitled to benefits in accordance with the

following rules as to eligibility:

(a)(1) Normal Pension. An "A" member of

the 1.B.E.W. in continuous good standing

with twenty (20) or more years immediately

preceding his application, who has attained

the age of sixty-five (65) years, shall receive

pension benefits computed on the basis of two

dollars ($2.00) per month for each full year of

such continuous "A" membership.

In May 1988, Lewis retired from United. He lost his

benefits and this suit followed.

On April 18, 1989, Lewis initiated this action seeking

damages for violation of the South Carolina Right-to-Work

Act, S.C.Code Ann. §§ 41-7-10 through -90 (Rev.1986 &

Supp.1995). Lewis alleged the defendants, acting

individually and as agents of the defendant Local 382,

interfered with his right to work, and caused him to lose his

pension benefits and to suffer other damages. Lewis further

claimed he paid dues and made contributions to the union

and its pension plan with the expectation of drawing a

pension when he retired.

On May 26, 1989, the defendants filed a petition for

removal in the United States District Court for the Columbia

Division of South Carolina. Thereafter, Lewis petitioned for

a remand to state court. On August 9, 1989, the federal court

remanded the case to state court "upon the ground that

removal was improvident."

App. 16

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The defendants moved to dismiss this action on

several grounds: (1) the alleged violation of the Right-to-

Work Act was preempted by § 301 of the Labor

Management Relations Act (LMRA), 29 U.S.C. § 185; (2)

the alleged violation of the Right-to Work Act was

preempted by § 514(a) of the Employee Retirement Income

Security Act (ERISA), 29 U.S.C. § 1144(a); (3) the Right-

to-Work Act did not preclude Local 382 from enforcing its

membership rules against members who violated them; and

(4) the prior decision of Layne v. International Bhd of Elec.

Workers, 271 S.C. 346, 247 S.E.2d 346 (1978), was not

applicable. Although it did not rule on the defendants’

motion to dismiss prior to trial, the trial court [324 S.C. 419]

denied the motion when it was renewed as a motion for a

directed verdict at the conclusion of the presentation of

Lewis' case-in-chief.

The jury returned a verdict in favor of the plaintiff?

against Local 382 on the right-to-work claim, but not against

the individual defendants remaining in the case. Further, the

jury awarded Lewis $82,560.00 in actual damages and

$25,000 in punitive damages against Local 382. The jury

also returned verdicts on the claim of outrage’ in favor of

each of the defendants.

Local 382 immediately filed motions for judgment

notwithstanding the verdict; remittitur or, in the alternative,

for a partial new trial; and/or a reduction in the award of

actual and punitive damages. On April 13, 1995, the trial

court issued an order denying the defendants’ post-trial

motions, affirming the award of punitive damages, and

3

N.G. Lewis died on July 9, 1990. Thereafter, his son, Michael

O. Lewis, was appointed personal representative of Lewis's estate and

substituted as plaintiff in this action.

, Lewis also brought an action for outrage. However, there is no

appeal from the jury's verdict for the defendants on that issue.

App. 17

entering final judgment against Local 382 in the amount of

$82,560, plus court costs, and $25,000 in punitive damages.

ISSUES

I. Did the trial court err in failing to

dismiss the claim for violation of the South

Carolina Right-to-Work Act because it is

preempted by the Labor Management

Relations Act?

Il. Did the trial court err in failing to

dismiss the claim for violation of the South

Carolina Right-to-Work Act because it is

preempted by the Employee Retirement

Income Security Act?

II. Did the trial court err in failing to

dismiss the claim for violation of the South

Carolina Right-to-Work Act because the Act

does not preclude unions from enforcing

membership rules?

[V. Does the Court's prior decision of

Layne v. International Bhd. of Elec. Workers.

supra, apply to this action?

V. Did the trial court err in failing to

reduce the jury's award of actual and punitive

damages?

App. 18

LMRA* PREEMPTION

[1] Local 382 maintains the essence of Lewis's

claim is that the actions of the local union deprived him of

his property interest in pension benefits provided by the

IBEW Pension Benefit Fund. Since interpretation of the

IBEW Constitution is essential to a determination of whether

Lewis had a property interest in the pension benefits, the

union contends § 301 of the LMRA preempts his state law

claim.

Section 301 of the LMRA provides:

Suits for violation of contracts

between an employer and a labor organization

representing employees in an industry

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...

29 U.S.C. § 185(a) (1978 & Supp.1996).

{2} In Local 174, Teamsters, Chauffeurs,

Warehousemen & Helpers v. Lucas Flour Co., 369 U.S. 95,

104, 82 S.Ct. 571, 577, 7 L.Ed.2d 593 (1962), the United

States Supreme Court explained that "in enacting § 301

Congress intended doctrines of federal labor law uniformly

to prevail over inconsistent local rules." The prospect that

“individual contract terms might have different meanings

under state and federal law would inevitably exert a

disruptive influence upon both the negotiation and

administration of collective agreements." Id. at 103, 82 S.Ct.

at 576-77. The preemptive effect of s 301 is necessary "in

5

The parties refer to the preemption as s 301 of the National

Labor Relations Act. In 1947, Congress enacted the Labor Management

Relations Act which encapsulated the old National Labor Relations Act

and added many sections.

App. 19

order to ensure uniform interpretation of collective-

bargaining agreements, and thus to promote the peaceable,

consistent resolution of labor-management disputes." Lingle

v. Norge Div. of Magic Chef.Inc., 486 U.S. 399, 404, 108

S.Ct. 1877, 1880, 100 L.Ed.2d 410 (1988).

[3.4] Ifa state law tort claim is founded on a duty

that is created by a collective bargaining agreement and

without existence independent of the agreement, then it is

preempted by § 301. See Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 105 S.Ct. 1904, 85 L.Ed.2d 206 (1985). "[A]

plaintiff covered by a collective-bargaining agreement is

permitted to assert legal rights independent of that

agreement, including state-law contract rights, so long as the

contract relied upon is not a_ collective-bargaining

agreement." Caterpillar, Inc. v. Williams, 482 U.S. 386, 396,

107 S.Ct. 2425, 2431, 96 L.Ed.2d 318 (1987) (emphasis in

original). In Lingle, supra, the Court stated:

[Section] 301 pre-emption merely ensures that

federal law will be the basis for interpreting

collective-bargaining agreements, and says

nothing about the substantive rights a State

may provide to workers when adjudication of

those rights does not depend upon the

interpretation of such agreements.

Lingle, 486 U.S. at 409, 108 S.Ct. at 1883.

In discussing whether a state law claim is preempted

by s 301 of the LMRA, our Supreme Court has adopted the

following standard:

The United States Supreme Court has

provided a test for determining whether a

state law claim is preempted by § 301 of the

LMRA. This test is one of whether the state

claim exists independently of the collective

bargaining agreement or whether it is

App. 20

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"inextricably intertwined" with a

consideration of the terms of the agreement.

If the state claim does not exist independently

of the agreement, it is preempted by federal

law. In determining this issue, we look to

whether the tort claim intrinsically relates to

the nature and existence of the agreement.

Questions that relate to what the parties to a

labor agreement intended and what legal

consequences were intended to flow from the

contract must be resolved by reference to

federal law regardless of whether these

questions arise in the context of an action

alleging breach of contract or liability in tort.

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

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

When assessing whether a state law remedy is

"independent" of the collective bargaining

agreement, we must examine whether

resolution of the state claim requires

construction of the collective bargaining

agreement. Lingle v. Norge Division of

Magic Chef, 486 U.S. 399, 108 S.Ct. 1877,

100 L.Ed.2d 410 (1988). Whether a cause of

action is subject to preemption depends upon

the facts of the particular case and the

relationship of the alleged tort to the contract

must be determined on a case by case basis.

Allis-Chalmers v. Lueck, supra. Our Court of

Appeals has recognized this.

Nash v. AT & T Nassau Metals, 298 S.C. 428, 432,

381 S.E.2d 206, 208 (1989).

The United States Supreme Court has concluded that

§ 301 not only provides federal court jurisdiction over

disputes involving collective bargaining agreements, but also

authorizes the federal courts to fashion a body of federal law

App. 21

for the enforcement of such agreements. See Textile

Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912,

1 L.Ed.2d 972 (1957). Accordingly, a preemption doctrine

under § 301 has developed which was summarized in Lingle,

supra:

[I]f the resolution of a state-law claim

depends upon the meaning of a collective-

bargaining agreement, the application of state

law (which might lead to inconsistent results

since there could be as many state-law

principles as there are States) is pre-empted

and federal labor-law principles--necessarily

uniform throughout the nation--must be

employed to resolve the dispute.

Lingle, 486 U.S. at 405-06, 108 S.Ct. at 1881.

More recently, the United States Supreme Court

extended the jurisdictional reach of § 301 to union

constitutions. In Wooddell v. International Bhd of Elec.

Workers, Local 71, et al., 502 U.S. 93, 112 S.Ct. 494, 116

L.Ed.2d 419 (1991), the Court held s 301 confers subject

matter jurisdiction upon the federal courts for suits by

individual union members against their union for alleged

breach of union constitutions. The Court further amplified

the issue and held:

In concluding that the employee's suit was

one provided for by § 301, we observed that

under a contrary holding there would be "

'[t]he possibility that individual contract terms

might have different meanings under state and

federal law [which] would inevitably exert a

disruptive influence upon both the negotiation

and administration of collective agreements.’ "

(citations omitted).

App. 22

2

Similar considerations bear on this

case. Congress expressly provided in §

301(a) for federal jurisdiction over contracts

between an employer and a labor organization

or between labor organizations. Collective-

bargaining agreements are the principal form

of contract between an employer and a labor

organization. Individual union members, who

are often the beneficiaries of provisions of

collective-bargaining agreements, may bring

suit on these contracts under § 301. Likewise,

union constitutions are an important form of

contract between labor organizations.

Members of a collective-bargaining unit are

often the beneficiaries of such interunion

contracts, and when they are, they likewise

may bring suit on these contracts under § 301.

(emphasis in original).

If they could not, unacceptable

consequences could ensue. There is no doubt

that IBEW could sue under § 301 to enforce

Local 71's contract with IBEW and there is no

doubt that such a suit would be governed by

federal law. If suit by an employee to enforce

an interunion contract is not authorized by s

301 and the employee is remitted to state

court and to state law, it is plain that the same

contract terms might be given different

meanings based solely on the identity of the

party. This would exert the disruptive

influence our cases have spoken of.

Wooddell, 502 U.S. at 101-02, 112 S.Ct. at 500.

Lewis relies on our Supreme Court's decision of

Nichols v. Amalgamated Clothing & Textile Workers Union,

305 S.C. 323, 408 S.E.2d 237 (1991), to support his position.

In that case, the Supreme Court held an action by an elected

App. 23

manager of a local labor union to compel payment of his

salary by the parent national labor union was not preempted

by the NLRA. The Court noted it needed to focus only on

the union's constitution, by-laws, anc prior practices to

determine whether the plaintiff was entitled to payment of

the wages he claimed were owed to him. However, since the

Court decided Nichols, the United States Supreme Court

issued the Wooddell opinion.

In light of Wooddell, Nichols is not precedential.

We conclude Lewis's claim under the South Carolina

Right-to-Work Act is substantially dependant upon an

analysis of the IBEW Constitution. Thus, it is preempted by

§ 301 of the LMRA. Reference to the IBEW Constitution is

necessary to determine whether Lewis had acquired a

property interest in pension benefits at the time of the alleged

wrongful acts by Local 382. Article XII, Section 1(a)(1) of

the IBEW Constitution sets forth the criteria for receiving

reurement benefits from the IBEW Pension Benefit Fund.

Accordingly, because interpretation of the IBEW

Constitution is essential to a determination of whether Lewis

had any property rights in the pension benefit fund, the state

law claim under the Right-to-Work Act is preempted by §

301.

ERISA PREEMPTION

[5] Local 382 also argues the Right-to-Work

claim of Lewis is preempted by § 514(a) of ERISA because

it "relates to" an employee benefit plan. The union avers its

alleged unlawful actions involved a benefit plan, i.e., Lewis's

right to receive a pension from the IBEW Pension Benefit

Fund. Accordingly, the union asserts preemption is

applicable because "[a]ssuming, without conceding, that Mr.

Lewis and other similarly situated former I.B.E.W. members

have a property interest in pension benefits provided by the

I.B.E.W. Pension Benefit Fund, I.B.E.W. Local Unions like

Local No. 382 would be subject to conflicting obligations,

App. 24

Soa. Ge oes eter Oae: a Sete 5 z

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despite the express provisions in the .B.E.W. Constitution to

the contrary." Local 382 maintains § 514(a) of ERISA was

intended to preclude such conflicting obligations.

We sketch the background of this issue cognizant that

readers who hunger for more detail can find it in a myriad of

reported cases.

ERISA expressly provides for the preemption of "any

and all State laws insofar as they may now or hereafter relate

to any employee benefit plan....". 29 U.S.C. § 1144(a)

(1985). The "deliberately expansive" language of the

preemption clause was "designed to ‘establish pension plan

regulation as exclusively a federal concern.’ " Pilot Life Ins.

Co. v. Dedeaux, 481 U.S. 41, 46, 107 S.Ct. 1549, 1552, 95

L.Ed.2d 39 (1987) (quoting Alessi v. Raybestos-Manhattan,

Inc., 451 U.S. [324 S.C. 425] 504, 523, 101 S.Ct. 1895,

1906, 68 L.Ed.2d 402 (1981)). ERISA defines "employee

benefit plan" as "an employee welfare benefit plan or an

employee pension benefit plan or a plan which is both an

employee welfare benefit plan and an employee pension

benefit plan." 29 U.S.C. § 1002(3) (Supp.1996). ERISA

further defines "employee pension benefit plan" as:

any plan, fund, or program which was

heretofore or is hereafter established or

maintained by an employer or by an employee

organization, or by both, to the extent that by

its express terms or as a result of surrounding

circumstances such plan, fund, or program--

(i) provides retirement

income to employees,.... |

29 U.S.C. § 1002(2)(A)(i) (Supp.1996). Through enactment

of ERISA, Congress intended "to promote the interests of

employees and their beneficiaries in employee benefit

plans." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103

S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983). Congress also

intended to safeguard employers’ interests by " ‘eliminating

App. 25

the threat of conflicting and inconsistent State and local

regulation of employee benefit plans.'" Id. at 99, 103 S.Ct.

at 2901.

We have recognized that while Congress intended for

ERISA to preempt state laws insofar as they relate to airy

employee benefit plan, the preemption clause is not all

encompassing. In Medical Park OB/GYN v. Ragin, 321 S.C.

139, 467 S.E.2d 261 (Ct.App. 1996), we held:

In interpreting the scope of this preemptive

language, the United States Supreme Court

has held the phrase "relate to" should be given

its broad, common sense meaning such that a

state law "relates to" an employee benefit plan

within the meaning of § 1144(a) if it has a

“connection with or reference to" such a plan.

As such, a state law may be subject to

preemption under ERISA "even if the law is

not specifically designed to affect such plans,

or the effect is only indirect." (citations

omitted).

Id. at 143-44, 467 S.E.2d at 264 (state law claims of

negligent misrepresentation, breach of fiduciary duty, and

professional negligence do not "relate to" an ERISA plan

when the claims are asserted against parties who allegedly

advised plaintiff to adopt an ERISA plan and then

misrepresented and/or failed to competently advise regarding

the administration of the plan).

The IBEW Pension Benefit Fund is an "employee

benefit plan" within the meaning of § 3(3) of ERISA, 29

U.S.C. § 1002(3) (Supp.1996). Therefore, the only question

to be determined is whether Lewis's state law claim "relates

to" the IBEW Pension Benefit Fund.

A state law "relates to" an ERISA-governed

employee benefit plan, within the purview of ERISA's

preemption clause, "if it has a connection with or reference

App. 26

‘ ROPE yey Roe eer

alanine the ita

to such a plan." Shaw, 463 US. at 97, 103 S.Ct. at 2900.

Further, a state law "relates to" an ERISA plan if the rights

or restrictions it creates are predicated on the existence of

such a plan. See District of Columbia v. Greater

Washington Bd. of Trade, 506 U.S. 125, 113 S.Ct. 580, 121

L.Ed.2d 513 (1992); Ingersoll-Rand Co. y McClendon, 498

U.S. 133, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990). Thus, the

state law may be preempted even though it has no direct

nexus with an ERISA plan if its effect is to dictate or restrict

the choices of an ERISA plan with regard to its benefits,

structure, reporting, or administration.

Lewis seeks to recover as damages from the local

union the pension benefits he claims he would have been

entitled to but for the action of Local 382. The resolution of

this claim directly affects the pension fund as it potentially

alters the criteria for receipt of benefits. In this particular

case, we hold the state law claim "relates to" an employee

benefit plan within the scope of ERISA's preemption clause.

Accordingly, Lewis's state law claim under the Right-to-

Work Act is preempted.

LOCAL POLICY CONCERNS

Lewis contends his claim is not preempted by federal

law because the union's conduct in this case is of merely

peripheral concern to federal law and touches interests so

deeply rooted in local policy and responsibility that courts

should not assume that Congress intended to preempt the

application of state law. Our state Supreme Court addressed

this principle in Kimbrell v. Jolog Sportswear, Inc., 239 S.C.

415, 123 S.E.2d 524 (1962). In Kimbrell, the Court held an

action by employees against an employer and union to

recover damages for tortious withholding of wages was not

an action to regulate labor relations and was a matter in

which the state had a compelling state interest. Accordingly,

the claim was not preempted by federal labor law. However,

the Court noted "[t]he prosecution of the present action for

App. 27

damages causes no conflict with federal jurisdiction. The

National Labor Relations Act affords no remedy to plaintiffs

for the wrongs done them." Id. at 421, 123 S.E.2d at 527

(emphasis added).

In this case, there is a direct conflict between Lewis's

right-to-work claim and the LMRA and ERISA. Therefore,

Kimbrell does not support Lewis's contention that his claim

is excepted from federal preemption.

EFFECT OF REMAND

[6] Lewis argues the union is precluded from

raising the preemption issue in state court after remand from

the federal court. When Lewis filed his complaint in state

court, the union filed a petition for removal in the federal

district court asserting ERISA preempted the application of

the South Carolina Right-to-Work Act. Lewis filed a motion

to remand in the district court contending the action was not

brought under federal law, but solely under state law for a

cause of action arising out of the South Carolina Right-to-

Work Act. The federal court granted the motion of Lewis to

remand "upon the ground that removal was improvident."

In support of his argument, Lewis relies upon the

cases of Osteen v. Atlantic Coast Line R.R., 119 S.C. 438,

112 S.E. 352 (1922), and Howell v. Hartford Accident &

Indem. Co., et al., 160 S.C. 549, 159 S.E. 380 (1931). Those

cases state the proposition that a decision by a federal court

to remand a case to state court is not judicially reviewable.

However, that proposition does not answer the question of

whether the federal court order precludes a state court from

considering preemption arguments after remand.

In Nutter v. Monongahela Power Co., 4 F.3d 319 (4th

Cir.1993), the Fourth Circuit Court of Appeals held a district

court's findings in a remand order concerning complete

preemption under ERISA and LMRA did not have a

preclusive effect and any issues decided incident to remand

App. 28

could be relitigated in state court. The court further

enunciated:

Federal law determines the preclusive

effect of federal orders on a question of

federal law, regardless of whether the court

applying the federal judgment is state or

federal. The most significant factor in

determining the preclusive effect of a district

court's findings incident to remand is the

unavailability of appellate review under §

1447(d). "Under contemporary principles of

collateral estoppel," the unavailability of

appellate review "strongly militates against

giving" a judgment preclusive effect. While

the availability of appellate review is not

"always an essential predicate of estoppel,"

we do not believe the district court's

jurisdictional findings incident to remand

should preclude relitigation of the same issues

in state court. Accordingly, we hold that the

district court's _ jurisdictional findings

regarding complete preemption have no

preclusive effect. Under our holding, any

issues that the district court decided incident

to remand may be relitigated in state court.

(citations omitted).

ie MECN. Pin te Siac CLE 3 al WOE NRA

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Nutter, 4 F.3d at 321-22.

We find Nutter dispositive of the procedural

argument of Lewis.

EFFICACY OF SOUTH CAROLINA

RIGHT-TO-WORK ACT

[7] Additionally, Local 382 asserts the South

Carolina Right-to-Work Act cannot be interpreted broadly

App. 29

enough to prohibit enforcement of its membership rule

against union members who continue to work for employers

determined to be "in difficulty."

South Carolina Code Ann. § 41-7-20 (Rev.1986 &

Supp.1995) provides:

Any agreement or combination

between any employer and any labor

organization whereby persons not members of

such labor organizations shall be denied the

right to work for such employer or whereby

such membership is made a condition of

employment, or of continuance’ of

employment by such employer, or whereby —

any such union or organization acquires an

employment monopoly in any enterprise, is

hereby declared to be against public policy,

unlawful and an illegal combination or

conspiracy.

South Carolina Code Ann. § 41-7-70 (Rev.1986 &

Supp.1995) provides in pertinent part as follows:

It shall be unlawful for any person,

acting alone or in concert with one or more

persons:

(1) By force, intimidation, violence or threats

thereof, or violent or insulting language,

directed against the person or property, or any

member of the family *144 of any person (a)

to interfere, or attempt to interfere, with such

person in the exercise of his right to work, to

pursue or engage in, any lawful vocation or

business activity, to enter or leave any place

of his employment, or to receive, ship or

deliver materials, goods or services not

App. 30

Perey el ne

Nibheawhinet! cot ictad kellie Lalas at

prohibited by law or (b) to compel or attempt

to compel any person to join, or support, or

refrain from joining or supporting any labor

organization.

The LMRA generally prohibits employers from

discriminating against employees based on their union

affiliation or activities, but § 8(a)(3) of the LMRA, 29 U.S.C.

§ 158(a)(3) (1973 & Supp.1996), expressly permits labor

unions and employers to agree that membership in the labor

union is a condition of employment, i.e., union security

agreements. However, § 14(b) of the LMRA, 29 U.S.C. §

164(b) (1978 & Supp.1996), provides that, while union

security agreements are permissible as a matter of federal

law:

[nJothing in this subchapter shall be construed

as authorizing the execution or application of

agreements requiring membership in a labor

organization as a condition of employment in

any State or Territory in which such execution

or application is prohibited by State or

Territorial law.

[8] As noted by our Supreme Court, "the evils to

which the legislative intent and the remedial purpose of the

statute were directed were: (1) union control of employment

on the one hand; and (2) employer boycott of, or insistence

upon, union labor on the other." Branham vy. Miller Elec.

Co., 237 S.C. 540, 546, 118 S.E.2d' 167, 170 (1961)

(company's freedom to hire and fire employee at its pleasure

is subject to the limitation that neither the hiring nor the

firing may be grounded or conditioned upon union

membership or nonmembership, referral or nonreferral,

approval or nonapproval).

Lewis's claim has nothing to do with compulsory

unionism, the focus of § 14(b) of the LMRA. This

App. 31

controversy is not about any agreement between Local 382

and an employer. Rather, it is about the union's ability to

enforce its internal rules against its members who joined

voluntarily, and who are free to resign at any time. See

Pattern Makers' League v. National Labor Relations Board,

473 U.S. 95, 105 S.Ct. 3064, 87 L.Ed.2d 68 (1985).

Since South Carolina is a right-to-work state and

employees cannot be compelled to join unions, an

employee's decision to join a union and abide by its rules is

voluntary. The union's purpose in requiring its members to

work only for employers with whom it has a collective

bargaining agreement is to be able to offer employers access

to skilled workers as the benefit of signing a contract.

However, even if the union obtains a contract, that

agreement does not give it control over the employment pool

because the union cannot compel employees working under

the contract to join as a condition of employment.

Therefore, Local 382's actions in this case did not violate the

Right-to-Work Act because Lewis's claim does not involve

compulsory unionism.

LAYNE v. INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS, LOCAL 382

[9] In Layne yv. Internationci Bhd. of Elec.

Workers, Local 382, 271 S.C. 346, 247 S...2d 346 (1978),

the Supreme Court affirmed the trial court's denial of the

local union's demurrer to the complaint in a Right-to-Work

claim. Layne, a union member for over thirty-five years,

alleged he paid dues with the expectation of drawing a

pension upon his retirement. He further alleged the union

expelled him from membership because he was working on a

construction project with nonunion members. Layne averred

the union's action was a violation of the South Carolina

Right-to- Work Act and, as a result, he suffered damages " 'in

that he lost the benefit of monies paid to Defendants over

thirty-five years.’ " Id. at 348-49, 247 S.E.2d at 348. On

App. 32

Se

i

appeal, the union argued the complaint failed to state a cause

of action because the conduct complained of did not

constitute a violation of the Right-to-Work Act. The

Supreme Court disagreed and held:

[T]he attempt to coerce the plaintiff from

engaging in the particular employment by

means of threatening his expected retirement

benefits constitutes a tortious violation of the

Right to Work Act.

Applying [Section 41-7-70] to the

facts alleged in the complaint, it can

reasonably be said that the union's actions

constituted coercion and intimidation directed

against the plaintiff and his property which

was designed to effect compulsory support of

the union and accomplish union control of the

plaintiff's employment.

Layne, 271 S.C. at 350, 247 S.E.2d at 348.

Based upon the facts of this case, we conclude Layne

is distinguishable. Layne was decided on a demurrer and the

Court considered the factual allegations to be admitted. Id.

In that respect, the Court considered as admitted the fact that

Layne had a property interest in his expected pension

benefit.

In contrast to Layne, this case was tried on its facts

and the record is devoid of any evidence establishing that, at

the time he was disciplined, Lewis had any vested right to

future pension benefits from the IBEW. Rather, the evidence

demonstrated Lewis had a contract with the union which

would entitle him to pension benefits in the future if he

fulfilled certain conditions set forth in the IBEW

Constitution. The conditions could not be satisfied until the

App. 33

member became eligible to apply for the pension benefit.

Therefore, the benefit could not vest and the member would

not obtain any property right in the benefits. Because Lewis

did not satisfy the required conditions, he never acquired a

property interest in the IBEW Pension Benefit Fund. As a

result, we conclude there is no evidence of a "threat against

property" and the Layne case is not controlling.

CONCLUSION

Based upon the :oove analysis, we conclude Lewis's

action for an alleged violation of the South Carolina Right-

to-Work Act is preempted by both LMRA and ERISA. The

trial court erred in denying the union's trial and post-trial

motions. Accordingly, the decision of the trial court is

reversed and the case is remanded for a dismissal due to a

lack of subject matter jurisdiction.

REVERSED AND REMANDED. °

GOOLSBY, J., concurs.

CURETON, J., dissents in a separate opinion.

CURETON, Judge (dissenting):

I respectfully dissent from the majority's holding and

conclude that neither the LMRA nor ERISA preempts

Lewis's cause of action. I also would hold that Lewis's

allegations properly state a cause of action under South

Carolina's Right to Work Act, S.C.Code Ann. s 41-7-10 et.

seq. (1986).

: Due to our disposition of the preceding issues, we find it

unnecessary to consider the last issue stated by the union.

App. 34

I. LMRA PREEMPTION

Section 301 of the LMRA is the provision

authorizing actions based on contracts between employers,

unions, local unions, and employees. In order for an action

to fall within the purview of § 301, it must either be: (1) an

action for violations of a contract between an employer and a

labor organization which represents employees in an industry

affecting commerce, or (2) an action for violations of a

contract between such labor organizations. Wooddell y. Int'l

Bhd. of Elec. Workers, 502 U.S. 93, 98, 112 S.Ct. 494, 498,

116 L.Ed.2d 419 (1991). Admittedly, the reach of § 301

preemption is broad. Because of concern about onflicting

interpretations of labor-oriented contracts, § 301 preempts

state law claims if "the resolution of the state law claim

depends upon the meaning of a collective bargaining

agreement." Lingle v. Norge Div. of Magic Chef, Inc., 486

U.S. 399, 405-6, 108 S.Ct. 1877, 1881, 100 L.Ed.2d 410

(1988). See also Hayden v. Reickerd, 957 F.2d 1506 (9th

Cir.1992) (noting that preemption is appropriate only when

provisions of a § 301 contract must be interpreted). The

proper test for § 301 preemption asks:

. whether the [state-law cause of action]

confers nonnegotiable state-law rights on

employers or employees independent [324

S.C. 433] of any right established by contract,

Or, instead, whether evaluation of the [state

law] claim is inextricably intertwined with

consideration of the terms of’ the labor

contract. If the state tort law attempts to

define the meaning of the contract

relationship, that law is preempted.

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 213, 105 S.Ct.

1904, 1912, 85 L.Ed.2d 206 (1985), cited in Nash v. AT & T

Nassau Metals, 298 S.C. 428, 381 S.E.2d 206 (1989).

App. 35

However, "not every dispute concerning employment, or

tangentially involving a provision of the collective

bargaining agreement, is pre-empted by § 301 or other

provisions of federal labor law." Lueck, 471 U.S. at 211, 105

S.Ct. at 1911. The United States Supreme Court also has

held that union constitutions are contracts between labor

organizations under § 301, so the above stated preemption

rules apply to interpretation of union constitutions as well as

interpretation of collective bargaining agreements. Cf.

Wooddell, 502 U.S. at 98-101, 112 S Ct. at 498-500 (holding

that a union member may sue a local union for violation of

the national union's constitution);' United Ass'n of

Jouneymen and Apprentices of the Plumbing and Pipefitting

Indus. v. Local 334, 452 U.S. 615, 101 S.Ct. 2546, 69

L.Ed.2d 280 (1981) (extending the jurisdictional reach of §

301 to union constitutions).

However, Lewis's claim that the local union's actions

violated the South Carolina Right to Work Act does not

present a case which falls under the admittedly broad

preemption doctrine pursuant to § 301. First, the right to

work statute cannot be superseded by agreement; the rights

created therein are non-negotiable and thus meet that portion

of the Lueck test. See S.C.Code Ann. § 41-7-10 et. seq.

(1986) (stating that violations of the statute are against the

public policy of South Carolina). Second, Lewis does not

allege any sort of claim that the local union violated the

IBEW constitution. Thus, Lewis's claim is not based directly

on rights created by the union constitution; instead, it is

based on rights created by South Carolina's right to work

law. Third, Lewis's claim does not depend on any sort of

interpretation of the union constitution. The record does not

reflect any dispute among the parties at trial as to the only

issues that could possibly involve interpretation of the

| agree with the majority that Wooddell would change the result

in Nichols v. Amalgamated Clothing and Textile Workers Union, 305

S.C. 323, 408 S.E.2d 237 (1991).

App. 36

ee

union's constitution: (1) whether United Electrical was

properly determined to be in difficulty, (2) whether Lewis

was fined and suspended in accordance with the union's rules

and constitution, and (3) whether Lewis eventually would

have been entitled to pension benefits but for his

membership lapse.” Thus, § 301 preemption is not

applicable.

The majority contends that § 301 preempts Lewis's

action because the union's constitution must be interpreted to

determine whether Lewis had a property interest in pension

benefits at the time of the union's alleged wrongful actions.

However, the pension benefits are only referred to in this

action as a measure of Lewis's damages, and it is undisputed

that Lewis, had he continued his membership of 38 years,

would have been entitled to benefits upon his retirement but

for the actions by the local union. Moreover, whether Lewis

had a property interest in the pension benefits is irrelevant to

the use of his expectancy in the benefits as a yardstick to

measure his damages. Lewis does not have to show a

property interest in the pension benefits in order to claim the

loss of them as the measure of damages.’ See Midgett v.

Sackett-Chicago, Inc., 105 Il.2d 143, 85 Ill.Dec. 475, 480,

>

+

There was testimony at trial about the proper procedure for

putting &@n employer "in difficulty" with the union. However, the record

reflects no conflicting testimony about whether the union properly put

Lewis's employer "in difficulty."

The majority distinguishes Layne v. International Bhd of Elec.

Workers, Local 382, 271 S.C. 346, 247 S.E.2d 346 (1978), because

Layne imvolved a demurrer which required the court to accept the

allegations in the pleadings as true. However, since I would hold that

Lewis did not need to prove his pension benefits had vested in order to

claim them as a measure of damages, I would further hold that Layne is

applicable and binding. In any event, the Layne opinion is unclear as to

whether Layne's benefits had vested, and the court referred to the

“plaintiff's expectancy of retirement benefits.” Id. at 350, 247 S.E.2d at

348 (emphasis added). Moreover, Lewis argues there are other elements

of the damages award, i.e. emotional distress, humiliation, etc.

App. 37

473 N.E.2d 1280, 1285 (1984), cert. denied, 474 U.S. 909,

106 S.Ct. 278, 88 L.Ed.2d 243 (1985) (holding that a

plaintiff may claim loss of unvested pension benefits as a

element of damages in a workers’ compensation retaliatory

discharge case). See also 22 Am.Jur.2d Damages § 115

(1988). In any event, mere reference to or consideration of

the terms of a union constitution is not the equivalent of

interpreting the meaning of the terms. Ramirez v. Fox

Television Station, Inc., 998 F.2d 743, 749 (9th Cir.1993)

(holding that the provisions relating to promotion in a

collective bargaining agreement did not require preemption

of an action based on discrimination in promotion). Thus,

Lewis's right to work action does not require an

interpretation of the terms of the union constitution. I would

hold that § 301 of the LMRA does not preempt Lewis's

claim. Cf. Baldwin v. Pirelli Armstrong Tire Corp., 927

F.Supp. 1046 (M.D.Tenn.1996) (holding that for purposes of

removal, § 301 does not completely preempt a retaliatory

discharge claim based on the Tennessee right to work

Statute).

I. ERISA PREEMPTION

I would also hold that ERISA does not preempt

Lewis's right to work claim. Congress expressly enacted a

provision which preempts any state cause of action which

"relate[s] to" an employee benefit plan, and the United States

Supreme Court has held that the "relate to" phrase should be

given a broad, common sense meaning as "connection with

or reference to." 29 U.S.C. § 1144(a); Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 107 S.Ct. 1549, 95 L.Ed.2d 39

(1987). However, the United States Supreme Court recently

held that "relate to" cannot "extend to the furthest stretch of

its indeterminacy," and that a court should "look instead to

the objectives of the ERISA statute as a guide to the scope of

state law that Congress understood would survive." New

York State Conference of Blue Cross & Blue Shield Plans v.

App. 38

Travelers Ins. Co., 514 U.S. 645, 115 S.Ct. 1671, 1677, 131

L.Ed.2d 695 (1995), cited in Medical Park OB/GYN y.

Ragin, 321 S.C. 139, 467 S.E.2d 261 (Ct.App. 1996).

Congress intended ERISA to set the standards of conduct,

responsibilities, and obligations for plan fiduciaries. 29

U.S.C. § 1001(b). Congress further intended the preemption

Clause to "avoid a multiplicity of regulation in order to

permit the nationally uniform administration of employee

benefit plans." Travelers, 514 U.S. 645, ----, 115 S.Ct. at

1677-78.

In interpreting the ERISA preemption statute, a

number of courts have applied these standards to hold that

mere reference to pension benefits as a measure of damages

is not enough for a state cause of action to "relate to" the

employee benefit plan. In Pizlo v. Bethlehem Steel Corp.,

884 F.2d 116 (4th Cir.1989), employees sued their employer

for terminating then: after the employer allegedly

represented that it would not fire any employee before the

age necessary to avoid an early retirement penalty. The

Pizlo court held that ERISA did not preempt the employees'

claims for breach of contract, promissory estoppel, and

negligent misrepresentation. In doing so, the court stated:

The claims here would not submit [the

employer] _to "conflicting employer

obligations and variable standards of

recovery", "determine whether any benefits

are paid" nor "directly affect the

administration of benefits under the plan."

The claims do not bring into question whether

Plaintiffs are eligible for plan benefits, but

whether they were wrongfully terminated

from employment after an alleged oral

contract of employment for a term. In their

State law claims, the Plaintiffs seek from the

corporation compensatory damages for wages

and pension, health, life and disability

App. 39

benefits that they would have been entitled to

had the alleged contract to work until age 62

not been breached. If the Plaintiffs prevail,

the damages would be measured in part by the

lost pension benefits the Plaintiffs would have

received, but the pension trust itself would not

be liable and the administrators of the pension

plan would not be burdened in any way.

Pizlo, 884 F.2d at 120-21 (citations omitted). In Hospice of

Metro Denver, Inc. v. Group Health Ins. of Oklahoma, Inc.,

944 F.2d 752 (10th Cir.1991), a hospice sued an insurer on a

promissory estoppel theory because the insurer refused to

pay a claim after repeatedly assuring the hospice that

payment would be forthcoming. Similarly, the Hospice

court held that ERISA does not preempt the hospice's cause

of action. In doing so, the Hospice court stated:

Hospice has not alleged any conduct

on the part of [the insurer] which relates to the

administration of the plan, to the processing

of any covered claim, or which impinges on

any employee's ERISA rights... [MJerely

because [Hospice's] damages would be based

upon the amount of potential plan benefits

does not implicate the administration of the

plan, and is not consequential enough to

connect the [324 S.C. 437] action with, or

relate the action to, the plan. The payment of

the judgment would be a one time, lump-sum

amount and would not further burden the

plan, either financially or administrativelly....

An action brought by a health care provider to

recover promised payment from an insurance

carrier is distinct from an action brought by a

plan participant against the insurer seeking

recovery of benefits due under the terms of

App. 40

the insurance plan. Preemption in this case

would stretch the "connected with or related

to" standard too far. Therefore, we hold that

Hospice's action is not preempted by ERISA.

Hospice, 944 F.2d at 755-56 (emphasis added) (citations

omitted). Admittedly, Hospice does not involve suit by

former beneficiaries of a ERISA plan, but Pizlo does. Both

cases hold unequivocally that ERISA does not preempt state

causes of action merely because damages are measured by

lost benefits. See also Howard v. Indiana Michigan Power

Co., 812 F.Supp. 135 (S.D.Ind.1992) (finding no ERISA

preemption when the pension benefits relate to damages, not

liability); Schlenz v. United Airlines, Inc., 678 F.Supp. 230

(N.D.Cal.1988) (holding that ERISA does not preempt a

wrongful discharge claim because the damage award, which

is based partly on lost employee benefits, will be nothing

more than a one-time lump-sum payment triggered by

employer's conduct); Totton v. New York Life Ins. Co., 685

F.Supp. 27 (D.Conn.1987) (ruling that ERISA does not

preempt claim for breach of an employment contract even

though lost pension benefits are sought as damages, in part

because the plan will not pay the one-time lump-sum

judgment). Cf. Morstein v. National Ins. Serv., Inc., 93 F.3d

715 (11th Cir.1996) (en banc) (holding that ERISA does not

; In Baker Hospital v. Isaac, 301 S.C. 248, 391 S.E.2d 549

(1990), the South Carolina Supreme Court held that ERISA preempted a

hospital's —_ contract, promissory estoppel, negligence, and

misrepresentation claims. Like Hospice, the hospital sued after the

insurer promised that a patient was covered, and then the insurer refused

to pay. Id. However, Isaac 's finding of preemption was based on

stipulations by the parties at oral argument that ERISA preempted the

common-law causes of action. Id. Isaac also noted that it followed the

"clear majority rule." Id. In this case, however, the parties disputed

preemption. This case also occurs after the trend to narrow ERISA

preemption in Hospice, Travelers, and the other authorities cited.

Therefore, I do not think that Isaac changes the reasoning in this dissent.

App. 41

preempt a company president's suit against an insurance

agent for fraudulently and negligently inducing her to

purchase a replacement policy with a pre-existing condition

clause); Custer v. Sweeney, 89 F.3d 1156 (4th Cir.1996)

(holding that ERISA does not preempt a legal malpractice

claim against an attorney concerning his representation of an

employee benefit plan because the claim does not affect "the

structure, the administration, or the type of benefits provided

by the ERISA plan").°

In this case, Lewis's claim involves none of the

ERISA concerns, and his claim clearly falls within the

persuasive holdings in Pizlo, Hospice, and the myriad of

federal district court cases. Lewis's action does not raise the

potentiality of conflicting regulation of an ERISA plan.

Lewis does not attempt to subject the plan or its

: In Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct.

478, 112 L.Ed.2d 474 (1990), the United States Supreme Court held that

ERISA preempted an employee's claim that, four months before his

benefits vested, his employer fired him with the express purpose to avoid

“contributing to or paying [employee] benefits." However, Ingersoll-

Rand is distinguishable from the present case. In Ingersoll-Rand, the

preempted claim was that the employer's principal reason for termination

was to prevent vesting of benefits. The Supreme Court held the claim

was preempted partly because an action pursuant to ERISA § 510 already

exists for "interfering with [the] attainment of any right ... under the

plan." /ngersoll-Rand, 498 U.S. at 142-43, 111 S.Ct. at 485. However,

Lewis does not allege that the union's activities were for the express

purpose of preventing him from claiming his benefits; thus, his action

does not fall within either the Ingersoll-Rand rule or ERISA § 510. See

Howard v. Indiana Michigan Power Co., 812 F.Supp. 135, 137-38

(S.D.Ind.1992); Tippett v. Old Kent Bank, 134 F.R.D. 159, 160-61

(W.D.Mich.1991) (both cases distinguishing Ingersoll-Rand on this

basis, in employee claims for lost pension benefits as damages). Unlike

Ingersoll-Rand, the court's inquiry in this case does not have to be

directed toward the plan as to whether the union had a legitimate or

pension-defeating motive. Finally, Ingersoll-Rand was decided before

the Supreme Court's narrowing of ERISA preemption in New York State

Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514

U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). After Travelers, | do

not think the Supreme Court would extend Ingersoll-Rand to the present

situation.

App. 42

a ET

eee ane eee —

administrator to any liability, and he does not allege any

conduct "which relates to the administration of the plan, to

the processing of any covered claim, or which impinges on

[his] ERISA rights." Hospice, 944 F.2d at 755. He does not

claim that, pursuant to the plan, he is a beneficiary who was

unfairly prevented from claiming his benefits. Instead,

Lewis claims that Local 382 of the [324 S.C. 439] IBEW

unlawfully attempted to prevent him from working for

United Electrical, Inc., and that, merely as a result, Lewis

lost his membership and pension benefits. Lewis does not

deny that he is no longer a beneficiary under the terms of the

union's pension plan. Thus, there is a distinction between

one who claims as an actual beneficiary under an employee

benefit plan, and one who claims as a nonbeneficiary "whose

damages might be measured by the plan's formula."

Howard, 812 F.Supp. at 137. Moreover, these damages will

be paid by the local union in a one-time lump-sum payment,

and not by the plan in pension-style monthly installments.

For the foregoing reasons, I would hold that Lewis's right to

work claim is not preempted by ERISA.

lil. RIGHT TO WORK ACT

The majority holds that the right to work act cannot

be interpreted broadly enough to encompass Lewis's claim. |

disagree pursuant to the South Carolina Supreme Court's

precedent in Layne v. International Bhd of Elec. Workers,

Local 382, 271 S.C. 346, 247 S.E.2d 346 (1978). Layne

involved an extraordinarily similar factual situation in which

a former union member claimed he lost "the benefit of

monies paid [the union] over thirty-five years" because the

union expelled him for working on a job with non-union

members.° Layne clearly held that Layne stated a cause of

y The Layne court interpreted Layne's claim of damage as

"inferentially the loss of the expectancy of drawing retirement

benefits..." Layne, 271 S.C. at 349, 247 S.E.2d at 348.

App. 43

action pursuant to the right to work act. Id. Admittedly,

Layne held that the tortious violation was the "attempt to

coerce the plaintiff from engaging in the particular

employment by means of threatening his expected retirement

benefits.’ Id. at 350, 247 S.E.2d at 348. However, even if

Layne is read as suggested by the majority, and even if

Lewis did not have a vested interest in the pension benefits,

there was certainly "intimidation ... directed against [Lewis's]

person or property" in the union's actions and fine of $2,000

levied against him. S.C.Code Ann. § 41-7-70 (1986). In any

event, Layne does not hold that a threatening of vested

benefits is necessary in order for a plaintiff to state a right to

work tort; in fact, the court refers to Layne's "expectancy of

retirement benefits." Layne, 271 S.C. at 350, 247 S.E.2d at

348. Therefore, I would hold that Layne clearly supports

Lewis's cause of action pursuant to the right to work act.

IV. CONCLUSION

I would hold that neither the LMRA nor ERISA

preempts Lewis's claim. I would further hold that Lewis

stated a cause of action pursuant to the South Carolina Right

to Work Act. Thus, I would affirm the jury's verdict against

the local union.

: As noted before, termination of an employee or union member

for the express purpose of preventing the vesting of benefits might be

preempted under /ngersoll-Rand Co. v. McClendon, 498 U.S. 133, 111

S.Ct. 478, 112 L.Ed.2d 474 (1990). However, there is an obvious

difference between the Ingersoll-Rand -type situation of a primary

motive to terminate someone in order to prevent vesting, and the Layne-

type situation of attempting to use pension benefits as leverage in order

to achieve compliance with union rules or decisions. The former

situation involves an economic decision to avoid ultimately having to pay

benefits by firing shortly before vesting; however, in the latter situation

the union or employer ordinarily would not care if a compliant

beneficiary obtained his benefits. Therefore, even Layne 's statement of

that case's tort is not preempted.

App. 44

JUDGMENT ON TRIAL OR ORDER BY THE COURT

STATE OF SOUTH CAROLINA )

COUNTY OF LEXINGTON )

COURT OF COMMON PLEAS )

CASE NO. 91-CP 32-2734

Michael O. Lewis as Per Rep. of etc.

Plaintiffs,

VS.

ee Se Sete ne Boe ate x

Local 382 International Brotherhood of Electrical Workers

ET AL.

Defendants.

ENTERED: APRIL 14, 1995

IT IS ORDERED AND ADJUDGED:

(¥) | SEE ATTACHED ORDER

DATED AT LEXINGTON, SOUTH CAROLINA, THIS 14

DAY OF Apr, 1995.

/s/ Thomas H. Centerford/Mhf

CLERK OF COURT

THIS JUDGMENT WAS ENTERED ON THE 13 DAY OF

Apr, 1995. AND A COPY MAILED FIRST CLASS THIS

14 DAY OF Apr. 1995.

TO ATTORNEYS OF RECORD OR TO PARTIES (WHEN

APPEARING PRO SE) AS FOLLOWS:

/s/Scott Elliott /s/Terry R. Hellig

Attorney(s) for Plaintiff(s) | Attorney(s) for Defendant(s)

| LCF 583 Amended 2/22/95

| App. 45

IN THE COURT OF COMMON PLEAS

STATE OF SOUTH CAROLINA

COUNTY OF LEXINGTON

MICHAEL O. LEWIS, as Personal Representative of the

Estate of N.G. Lewis, Deceased,

Plaintiff,

-VS-

LOCAL 382, INTERNATIONAL BROTHERHOOD OF

ELECTRICAL WORKERS (AFL-CIO), DAVIS SELF,

LARRY POOLE, JEROME JENKINS, DORIS M. JONES,

BILL DAVIS, JOHN C. DAVIS, AND RONALD

GOODALE,

Defendants.

CASE NUMBER: 91-CP-32-2734

ORDER DENYING DEFENDANT’S POST-TRIAL

MOTIONS AND AFFIRMING THE AWARD OF

PUNITIVE DAMAGES

ENTERED: APRIL 13, 1995

FILED: APRIL 13, 1995

This case was brought under the South Carolina

Right to Work Law and an outrage claim. After being

remanded to state court by the Honorable Matthew J. Perry,

a jury awarded actual and punitive damages against Local

382 of the International Brotherhood of Electrical Workers

(IBEW) on the right-to-work claim. The defendants made

post-trial motions for JNOV, remittitur, new trial absolute,

new trial nisi, and reduction of the punitive damages.

These matters and the mandatory post-trial review of

punitive damages, have been under advisement for a very

App. 46

sd ittadina tte baie

extended period of time because of misunderstandings by the

court about the status of the matter, and deep concerns about

the legal issues involved and the conduct of the trial. While

many of those concerns still exist, the court denies the post-

trial motions and approves the punitive damage award.

This case involves complex issues regarding the

relationship of the Right to Work Law to federal preemption

requirements under the Labor Management Relations Act

(LMRA) and the Employee Retirement Income Security Act

(ERISA). It also involves questions about the impact of a

federal court’s order of remand in a case involving these

issues.

N.G. Lewis was a union worker for over thirty-eight

(38) years. In 1986, the majority of workers at his place of

employment voted that the IBEW would not be their

exclusive bargaining agent. The IBEW declared the

employer “in difficulty” and notified its members that their

union membership could be in jeopardy if they continued

working for that employer. Lewis continued to work for the

company, so another member filed charges against him. On

February 13, 1987, the union imposed a fine which would be

suspended if Lewis used the union’s referral procedures and

quit working for the company within thirty (30) days. Lewis

did not pay the fine, and his membership dues lapsed. He

was dropped as a member of the union for non-payment of

dues.

The IBEW Constitution provides that non-members

forfeit any pension or death benefits payable from the

Pension Benefit Fund. Lewis lost those benefits and this suit

followed.

The court has carefully reviewed the detailed

information submitted by the attorneys, including updates on

recent developments in the law. The parties and counsel

have been extremely patient and helpful to the court while it

has _ wrestled with these matters. After thorough

consideration, the court deems it sufficient to forego the

specificity reflected in the proposed orders submitted and

App. 47

simply deny the post-trial motions. The verdict is supported

by the evidence .

As for the punitive damage award, the court has

conducted a review of the factors under Gamble _v.

Stevenson, 305 S.C. 104, 406 S.E. 2d 350 (1991). The jury

awarded actual damages of Eighty-Two Thousand Five

Hundred Sixty & No/100 ($82,560.00) Dollars and punitive

damages of Twenty-Five Thousand & No/100 ($25,000.00)

Dollars against the IBEW. The jury found for the IBEW on

the outrage claim and found for the individual defendants on

both causes of action.

Gamble dictates that the court review the award of

punitive damages to evaluate it in light of the following

factors: the defendant’s degree of culpability, the duration of

the conduct, the defendant’s awareness or concealment, the

likelihood that the award will deter the defendant or others

from similar conduct, whether the award bears a reasonable

relationship to the harm, the defendant’s ability to pay, and

other appropriate factors.

The evidence indicated that the IBEW was a primary

actor, and that it acted with full knowledge of the potential

impact on the plaintiff. The conduct occurred over an

extended period of time and involved hearings, notifications,

correspondence, and implementation of policy which

demonstrated awareness by the union of its actions. There

was never any question about the IBEW’s knowledge of the

Right to Work Law.

The jury assessed considerable punitive damages,

much in the nature of a fine or penalty which should gain the

attention of the IBEW and others similarly situated, without

in any way strapping the financial resources of the union.

The court is aware of one prominently displayed newspaper

article published about the verdict in a major state

newspaper.

Since the suit was based on a denial of benefits, and

the jury apparently found that the IBEW improperly used

force to affect the work choice of a South Carolina citizen,

App. 48

peepee S75

|

:

R

5

the court finds a reasonable relationship to the harm. The

court notes that the punitive damages were far less than the

actual damages assessed.

Finally, as previously nected, the court has been very

concerned about the conduci «£ the trial. One concern was

the use of an “us versus them” closing argument, to which no

objection was raised. Obviously, those arguments and other

similar tactics based on regionalism or anti-unionism invite a

verdict which is the result of bias, prejudice, or whim, both

as to actual and punitive damages. After carefully reviewing

this case and the verdicts reached, the court is convinced that

the jury did not accept that invitation, but did its best to fairly

apply the law as charged.

The court denies the post-trial motions and

determines that the award of punitive damages is proper

within the parameters of Gamble and other case law.

Judgment shall be entered against the Local 382 of the

IBEW in the amounts awarded by the jury.

AND IT IS SO ORDERED.

/s/William P. Keesley

Judge, 1 1" Judicial Circuit

Edgefield, South Carolina

April 10, 1995

App. 49

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

N. G. LEWIS,

Plaintiff,

-VS-

LOCAL No. 382, INTERNATIONAL BROTHERHOOD

OF ELECTRICAL WORKERS, (AFL-CIO), DAVIS SELF,

LARRY POOLE, JEROME JENKINS, DORIS M. JONES,

BILL DAVIS, JOHN C. DAVIS, and RONALD

GOODALE,

Defendants.

CIVIL ACTION NO. 3:89-1361-0

ENTERED: AUGUST 9, 1989

FILED: AUGUST 9, 1989

ORDER

This matter is before the Court upon the motion of

the defendants to set aside the entry of default which was

entered on June 26, 1989. Upon consideration of the motion,

the arguments thereon and for good cause, the motion is

hereby granted.

Also, the plaintiff seeks an order remanding the case

to the state court from which it was removed, upon the

ground that removal was improvident. The Court agrees.

Therefore, upon consideration of the matter and for good

cause shown, this case is hereby remanded to the Court of

Common Pleas for Lexington County, South Carolina.

IT IS SO ORDERED.

App. 50

nailed

/s/

Matthew J. Perry

UNITED STATES DISTRICT

JUDGE

Columbia, South Carolina,

August 9, 1989.

App. 51

THE SUPREME COURT OF SOUTH CAROLINA

DANIEL E. SHEAROUSE P.O.BOX 11330

CLERK OF COURT COLUMBIA, S.C. 29211

BRENDA F. SHEALY (803) 734-1080

DEPUTY CLERK

August 17, 1999

Henry Hammer, Esquire

Howard Hammer, Esquire

Hammer, Hammer, Carigg & Potterfield

P.O. Box 1421

Columbia, SC 29202

Scott A. Elliott, Esquire

Elliott & Elliott, PA

721 Clive Street

Columbia, SC 29205

Re: — Lewis, Michael O. v. Local 382

Dear Counsel:

The Court has issued the following Order on your Petition

for Rehearing in the above matter:

“Petition for Rehearing is denied.

/s/Ernest A. Finney, Jr. C.J.

/s/Jean H. Toal A.J.

/s/James E. Moore A.J.

/s/John H. Waller, Jr. A.J.

/s/E.C. Burnett, III A.J.

August 17, 1999.”

App. 52

The remittitur in this matter is today being forwarded to the

Clerk of Court for Lexington County.

App. 53

THE SOUTH CAROLINA COURT OF APPEALS

POST OFFICE BOX 11629

COLUMBIA, S.C. 29211

1015 SUMTER STREET

COLUMBIA, S.C. 29201

(803) 734-1890

KENNETH A. RICHSTAD

CLERK

IDA R. CARSON

DEPUTY CLERK

February 21, 1997

Henry Hammer, Esquire

Messrs, Hammer, Hammer, Carrigg & Potterfield

P.O. Box 1421

Columbia, South Carolina 29202

Re: Michael O. Lewis, etc. v. Local 382,

International Brotherhood of Electrical

Workers (AFL-CIO), et al. (Opinion 2573)

Dear Mr. Hammer:

Your Petition for Rehearing has been denied in the

following Order:

“Petition for Rehearing denied.

/s/C. Tolbert Goolsby, Jr., J.

/s/Ralph King Anderson, Jr., J.

I would grant.

/s/Jasper M. Cureton my 2

App. 54

— Frente cenaliSalee ehh

Columbia, South Carolina

February 21, 1997.”

The Remittitur will be held for a period of thirty days

until the time to Petition for Writ of Certiorari has expired,

after which it will be forwarded to the trial court.

Please notify this office, in writing, within ten (10)

days from the date of this letter, whether or not you want any

of the remaining Records on Appeal and briefs we may have

in this case. Also enclose a check payable to the S.C. Court

of Appeals, in the amount of $7.50, to cover mailing costs.

If we have not heard from you within ten (10) days, the

Record on Appeal and briefs will be destroyed.

Sincerely,

/s/

Kenneth A. Richstad

Clerk

KAR/jsc

cc: The Honorable Clyde N. Davis, Jr.

Herbert E. Buhl, III, Esquire

Terry R. Yellig, Esquire

Howard Hammer, Esquire

Scott Elliott, Esquire

App. 55

THE SOUTH CAROLINA COURT OF APPEALS

POST OFFICE BOX 11629

COLUMBIA, S.C. 29211

1015 SUMTER STREET

COLUMBIA, S.C. 29201

(803) 734-1890

KENNETH A. RICHSTAD

CLERK

IDA R. CARSON

DEPUTY CLERK

February 21, 1997

Henry Hammer, Esquire

Messrs, Hammer, Hammer, Carrigg & Potterfield

P.O. Box 1421

Columbia, South Carolina 29202

Re: Michael O. Lewis, etc. v. Local 382,

International Brotherhood of Electrical

Workers (AFL-CIO), et al. (Op. 2573)

Dear Mr. Hammer:

Your Suggestion for Rehearing en banc has been

denied in the following Order:

“En Banc Denied.

/s/William T Howell, C

ia

/s/Jasper M Cureron, J.

/s/C. Tolbert Goolsby, Jr., J.

J.

J

J

/s/Carol Connor

/s/Kaye Hearn,

/s/Ralph King Anderson, Jr.,

App. 56

/s/H. Samuel Stilwell, ss

/s/William L. Howard, J.

Judge Thomas E. Huff not participating.

Columbia, South Carolina

February 21, 1997.”

/s/Kenneth A. Richstad

Clerk

KAR/jsc

ce: Herbert E. Buhl, III, Esquire

Terry R. Yellig, Esquire

Howard Hammer, Esquire

Scott Elliott, Esquire

The Honorable Clyde N. Davis, Jr.

App. 57

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Michael O. Lewis, As Personal Representative of the Estate

of N. G. Lewis, Deceased,

Petitioner,

V.

Local 382, International Brotherhood of electrical Workers

(AFL-CIO), Davis Self, Larry poole, Jerome Jenkins, Doris

M. Jones, Bill Davis, John C. Davis and Ronald Goodale,

Defendants,

Of Whom Local 382, International Brotherhood of Electrical

Workers (AFL-CIO) is,

Respondent.

PETITION FOR RE-HEARING

APPEAL FROM LEXINGTON COUNTY

William P. Keesley, Circuit Court Judge

Opinion No. 24965

Heard 12/15/98-Filed 07/12/99

SUMMARY OF REASONS FOR

GRANTING PETITION FOR REHEARING

This court, in affirming the majority opinion of the

Court of Appeals, reported in 324 S.C. 412, 481 S.C. 2d 135,

(Ct. App. 1997) overlooked or misapprehended that:

l. The U.S. District Judge at the hearing of the

Motion to Remand asserted jurisdiction of the case and

considered and decided on the merits the Union's Motion to

Set Aside the entry of default against it, the preemption

App. 58

issue, and in the exercise of his discretion remanded the

pendent state law issue of whether the Union violated the

Right to Work Act to the state court. Consequently, the

decision on the issue of preemption was reviewable on

appeal and thus preclusive as decided by the trial judge.

uackenbush v. Allstate Insurance Com any, 574 U.S. 716,

116 S.Ct. 1712 (1994); Carnegie-Mellon University v.

Cohill, 484 U.S. 343; 108 S.Ct. 614 (1988); Executive

Software North America Inc. v. U.S. District Court, 24 F 3d

1545, 1549, 1559 (1993).

r a The right and remedy granted to a Union

member under a state public interest statute enacted to

effectuate a legislative policy is non-negotiable and can not

be waived by contract or membership in a labor

organization. Brooklyn Sovinges Bank v. O'Neill, 324 U.S.

697, 65 S.Ct. 895, 902 (1945).

3. As acknowledged in the opinion of the U.S.

District Court and the Court of Appeals, and as expressed by

this Court, "This is an action for an alleged violation of the

South Carolina Right to Work Act," and as asserted by

Lewis' counsel in the Motion to Remand, supported by state

and federal decisions, to which the federal judge agreed "this

is not a suit to recover benefits under the terms of a plan or

to clarify Plaintiff's rights under the terms of the plan as

provided in 29 U.S. 1132(a)(1)."

4. Reference to a pension plan is only incidental

to Lewis' action under the South Carolina Right to Work Act,

is referred to merely as a measure of damages, and is too

tenuous, remote and peripheral to preempt state law touching

interests deeply rooted in local feeling and responsibility.

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

108 S.Ct. 1877, footnote 12 at 1885 (1998); Allis Chalmers

vy. Lueck, 471 U.S. 202, 105 S.Ct. 1904, 1912 (1995); Pizlo

v. Bethlemen Steel Corporation, 884 F.2d 116 (4th Cir.

1989).

3 § 301 does not grant to the parties to a

collective bargaining agreement, and by extension of 29

App. 59

U.S.C. 413 to a union and its members under a union

constitution and its by-laws, the right or liberty to contract

for what is illegal under state law, which would be

inconsistent with congressional intent to preempt state rules

that proscribe or establish rights and obligations of a labor

contract. Allis Chalmers v. Lueck, supra.

6. Layne _v. International Brotherhood of

Electrical Workers, Local 382, 271 S.C. 346, 247 S.E.2d 346

(1978), virtually identical to the facts herein holding that the

South Carolina Right to Work Act is not preempted under 29

U.S.C. 413, is not distinguishable from the instant case.

7. Congress itself has carved out exceptions to

preemption applicable here by enactment of 29 U.S.C. 413

and 28 U.S.C. 164. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct.

903 (1967).

8. The U.S. Supreme Court has refused to hold

state remedies pre-empted where the activity regulated was

merely of a peripheral concern of the Labor Management

Relations Act or, as here, touched interests so deeply rooted

in local feeling and responsibility that in the absence of

compelling congressional direction, the court could not infer

that Congress has deprived the state of the power to act.

Vaca v. Sipes, supra.

9. In determining the preemption issue under

ERISA, the starting presumption is that Congress does not

intend to supplant State law and the burden of overcoming

this presumption is considerable, and further, the words

"relate to" should be viewed and interpreted in a narrow

sense and not in a broad sense. DeBuono v. N.Y.S.R.-ILA

Medical and Clinical Services, = US. _, 117 S.Ct.

1747 (1997).

10. Lewis' remedy under the South Carolina

Right to Work Act is in plain and unambiguous language,

without need of interpretation and in no way is substantially

or inextricably intertwined with the provisions of any labor

agreement, either under LMRA, LMRDA, ERISA, or the

union constitution or it by-laws.

App. 60

11. The sound syliogistic, logical and well

reasoned dissenting opinion of Judge Cureton clearly

demonstrates that in accordance with applicable federal and

State law principles, neither LMRA nor ERISA preempts

Lewis' cause of action. Lewis v. International Brotherhood

of Electrical Workers Local 382, 324 S.C. 412, 481 S.E. 2nd

135, 145-150 (Ct. App. 1996).

12. The issue relating to attorneys’ fees is still not

moot. It is expected to remain pending until the time for

applying to the U.S. Supreme Court for certiorari expires,

and if certiorari should be applied for, then continued

pending final disposition by the U.S. Supreme Court.

App. 61

THE STATE OF SOUTH CAROLINA

In The Supreme Court

Michael O. Lewis, As Personal Representative of the Estate

of N.G. Lewis, Deceased,

Petitioner,

¥,

Local 382, International Brotherhood of Electrical Workers

(AFL-CIO), Davis Self, Larry Poole, Jerome Jenkins, Doris

M. Jones, Bill Davis, John C. Davis and Ronald Goodale,

Defendants,

Of Whom Local 382, International Brotherhood of Electrical

Workers (AFL-CIO) is,

Respondent.

PETITION FOR RE-HEARING

APPEAL FROM LEXINGTON COUNTY

William P. Keesley, Circuit Court Judge

Opinion No. 24965

Heard 12/15/98-Filed 07/12/99

PETITION FOR REHEARING

The Petitioner, Michael O. Lewis, as Personal

Representative of the Estate of N.G. Lewis, deceased,

respectfully prays that this Court grant a rehearing of its

decision filed July 12, 1999, affirming in result the majority

opinion of the South Carolina Court of Appeals, reported in

324 S.C. 412, 481 S.E.2d 135 (Ct. App. 1997) on the

following grounds:

App. 62

I.

This Court affirmed the majority opinion of the Court

of Appeals holding that the federal court order of USS.

District Judge Perry is not preclusive on the issue of

preemption because “it is impossible to determine for certain

the basis of the federal court’s remand as it merely states

removal was improvident.” This Court noted that the

remand order did not specify as grounds for remand either

lack of jurisdiction or defects in the removal procedure. In

the absence of such specification, this Court overlooked or

misapprehended that the remand order was reviewable on

appeal, and therefore preclusive on the issue of preemption

in accordance with the authority of Quackenbush v. Allstate

Insurance Company, 574 U.S. 706, 116 S.Ct. 1712 (1994).

See Things Remembered, Inc. v. Petarca, 516 U.S.116, 116

S.Ct. 494, at 498 (1995) holding that the language to the

contrary in Nutter v. Monongahela Company, 4 F.3d.319 (4"

Cir. 1993) is dicta.

Moreover, reference to the motions hearing before

Judge Perry after the case was removed to federal court

eliminates any possibility that the remand order was issued

pursuant to 28 U.S.C. 1447 (c). After removal, Judge Perry

asserted subject matter jurisdiction to decide the issues

before him, to wit, (1) the motion of the Union to Set aside

an entry of default against the Union; (2) the issue of

whether Lewis’ action was preempted; and (3) Lewis’

motion to remand. After hearing extensive argument by

counsel for the respective parties, Judge Perry assumed

jurisdiction and thereafter granted the Union’s motion to set

aside the entry of default, agreed with and embraced Lewis’

argument that his action was not preempted, and finally,

exercising his discretion, remanded to the state court for trial

the pendent state law claim for violation of the South

Carolina Right to Work Act. Carnegie- Mellon University v.

Cohill, 484 U.S. 343, 108 S.Ct. 614 (1988); Executive

App. 63

Software North America, Inc. v. U.S. District Court, 24 F.3d

1545, 1549, 1554 (1993).

As heretofore stated, the remand order was thus

reviewable on appeal and preclusive on the issue of

preemption. Accordingly, the Union is precluded from once

again litigating the ruling of the Federal Court on the motion

to remand, the ruling of the Circuit Court on the post trial

motions and the judgment of the Circuit Court entered on the

findings of the jury, unchallenged on appeal, that the Union

violated by force, intimidation and threats the South Carolina

Right to Work Act in interfering or attempting to interfere

with the exercise of Lewis’ non-negotiable right to engage in

lawful employment.

This Court, in holding that Lewis’ claim was

preempted under LMRA, adopted the majority Court of

Appeals’ finding that Lewis’ claim was_ substantially

dependent upon an analysis of the Union constitution

because interpretation of the Constitution was essential to a

determination of whether Lewis had any property rights in

the pension benefit fund.

In holding that Lewis’ claim was preempted and in

adopting the majority Court of Appeal’s finding, this Court

overlooked or misapprehended that Lewis did not and could

not claim any benefits in a pension which had not vested,

and further overlooked that the findings of the Court of

Appeals were without evidentiary support, based solely on

the conclusory allegations of the Union.

The Court further overlooked or misapprehended that

Lewis did not bring this action for pension benefits nor did

he claim that the Union’s conduct was motivated to evade

the payment of pension benefits. Nor did he bring this

action against the pension fund, its trustees and

administrators which would have been required if he had

been seeking damages for pension benefits or claiming that

App. 64

the Union was motivated to evade a payment of his pension

benefits. As asserted by Lewis’ counsel on the motion to

remand, supported by decisions of state and federal courts

with which Judge Perry agreed, “this is not a suit to recover

benefits under the terms of a plan or to clarify Plaintiff's

rights under the term of a plan as provided by 29 U.S.C.

1132 (a) (1).”

There is no evidence that his claim would

substantially affect the pension fund or potentially alter the

criteria for receipt of benefits. His claim for damages was

for mental anguish, humiliation, emotional distress and other

emotional ills and for the loss of the value or costs of the

monies he paid to the Union over the years he was a member

for the expectancy of benefits. The benefits are referred to

only as a measure of Lewis’ damages as pointed out by

Judge Cureton in his dissent, Lewis v. International

Brotherhood of Electrical Workers Local 382, 324 S.C. 412,

481 S.E. 2"° 135, 145-150, in accordance with the authority

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

399, 108 S.Ct. 1877, footnote 12 at 1885 (1988) which reads:

A collective-bargaining agreement may, of

course, contain information such as rate of

pay and other economic benefits that might be

helpful in determining the damages to which a

worker prevailing in sate-law suit is entitled.

See Baldracchi v. Pratt & Whitney Aircraft

Div., United Technologies Corp., 814 F .2d, at

106. Although federal law would govern the

interpretation of the agreement to determine

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

interpretation of the agreement, but the

Separate state-law analysis would not be

thereby pre-empted. As we said in Allis

App. 65

Chalmers Corp. v. Lueck, 471U.S., at 211,

105 S.Ct., at 1911, “not every dispute...

tangentially involving a provision of a

collective-bargaining agreement, is pre-

empted by 301..."

Moreover, since the findings of fact that the Union

violated the S.C. Right to Work Act by the use of force,

intimidation and threats, as found by the jury, and as ruled

upon by the trial judge on the post trial motions are

unchallenged on appeal, this Court overlooked or

misapprehended the decision of the United States Supreme

Court in Allis Chalmers, Corp. v. Lueck, 471 U.S. 202, 105

S.Ct. 1904, 1912 (1995) holding:

[c]learly § 301 does not grant to the parties to

’ a collective bargaining agreement! the ability

to contract for what is illegal under state law.

In extending § 301 beyond suits for breach of

contract, it would be inconsistent with

Congressionai intent under that Section to

preempt state rules that proscribe conduct or

establish rights and obligations of a labor

contract.

The gravaman of Lewis’ action was not for the

Union’s attempt to evade payment of pension benefits, but

his action clearly was for violation of the South Carolina

Right to Work Act against the Union for interfering or

attempting to interfere by the use of force, intimidation or

threats with the exercise of Lewis’ right to engage in lawful

Constitutions and by-laws of a labor organization fall within the

same category as collective bargaining agreements by LMRDA 29

U.S.C. 411 et_seg., an Amendment to LMRA and Wooddell_v.

International Brotherhood of Electrical Workers, Local 71, 502 U.S. 93,

112 S.Ct. 494(1991).

App. 66

employment, a right totally independent of and in no way

inextricably intertwined with the provisions of a labor

agreement, or the Union Constitution, or its by-laws. His

action under the Right to Work Act, at best, is remote,

tenuous and of peripheral concern to ERISA, LMRA or to

any analysis of the Union Constitution or its by-laws. Allis

Chalmers, Corp. v. Lueck, 471 U.S. 202, 105 S.Ct. 1904,

1912 (1995); DeBuono vy. N.Y.S.R.-ILA Medical and

Clinical Services, __.U.S._, 117 S.Ct. 1747 ( 1997);

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

108 S.Ct. 1877 (1988).

This Court further overlooked or misapprehended

that as found by the U.S. District Judge and the trial judge,

and as expressed by the Court of Appeals and as also stated

in the opinion of this Court “Lewis brought this action

seeking damages for violation of the South Carolina Right to

Work Act, S.C. Code Ann. §§ 41-7-10 through 90 (Rev.

1986 & Supp 1997).”

III.

A. This Court, in seeking to distinguish Layne v.

Internationai Brotherhood of Electrical Workers, Local 382,

271 S.C. 346, 247 S.E.2d 346 (1978) as not applicable to

support Lewis’ claim, reasons that § 413 of LMRDA, (29

U.S.C.413), an exception to preemption carved out by

Congress, is limited to “the subchapter of LMRDA

§411(c)(S) which deals with due process measures a Union

member must be afforded prior to being disciplined.

In so reasoning, this Court overlooked or

misapprehended that the exception to preemption carved out

by Congress is not limited to any one portion of 29 U.S.C.

411 et seq., but rather applies in plain and unambiguous

language, without need of interpretation, to preserve

Petitioner’s rights and remedies afforded him under the

South Carolina Right to Work Act. Section 413 as

applicable here reads:

App. 67

Nothing contained in this subchapter shall

limit the rights and remedies of any member

of a labor organization under any State or

Federal law or before any court or other

tribunal or under the constitution and by-laws

of any labor organization.

B. This Court also reasons that Layne is not

applicable because to apply provisions of 29 U.S.C. 413 to

these facts would “completely eviscerate” the preemption

provisions of §301 of the L.M.R.A. In so reasoning, the

Court overlooked or misapprehended that the application of

§ 413 is limited to preserving those rights and remedies of

labor union members where, as here, such rights and

remedies are granted in the public interest to effectuate

legislative policy and are not negotiable.

c. This Court also reasons that Layne is not

applicable because the issue of § 301 preemption was not

raised in Layne. While this Court acknowledges that

Wooddell v. International Brotherhood of _ Electrical

Workers, Local 71, 502 U.S. 93, 112 S.Ct. 494 (1991)

extends the preemption provision of the LMRA (§ 301) to

actions between a Union member and his union, the Court

overlooked that § 413 is an amendment to and an extension

of § 301. The § 413 preemption issue was obviously raised

and addressed by the South Carolina Supreme Court in

deciding Layne, virtually identical to the action sub judice,

holding that the Right to Work Act was not preempted by

federal law, and nothing appears therein to the contrary.

D. This Court, in holding that Layne is not

applicable, overlooked or misapprehended the sound

syllogistic, logical and well reasoned dissenting opinion of

Judge Cureton in holding that “Layne clearly supports

Lewis’ cause of action pursuant to the Right to Work Act,”

also citing in support thereof the Fourth Circuit in Pizlo v.

Bethlehem Steel Corporation, 884 F 2d. 116 (4™ Circuit

1989) and other federal cases, as to which this Court states

App. 68

“We are not persuaded by this authority.” Apparently, this

Court overlooked or misapprehended the authority of the

United Supreme Court in Lingle, infra, referred to in this

Petition under II above.

IV.

This Court, in affirming the decision of the majority

Court of Appeals, adopted its holding that Lewis’ claim was

preempted by §514(a) of ERISA as his claim for damages

“related to” an employee benefit plan within the scope of

ERISA, and the resolution of Lewis’ claim directly affected

the pension fund as it directly alters the criteria for the

receipt of benefits, and, further, that it is inescapable that

Lewis’ claim is predicated upon the existence of IBEW

pension plan.

In so adopting the holding of the majority Court of

Appeals, this Court overlooked that the holding was without

evidentiary support in the record and was obviously based

upon the conclusory allegations of the Union.

As noted by Judge Cureton in his dissent, Lewis’

claim was not predicated upon the existence of the IBEW

pension plan. It was predicated upon the South Carolina

Right to Work Act for violation thereof by the conduct of the

Union interfering and attempting to interfere by the use of

force, intimidation and threats or violent or insulting

language directed against Lewis, his family or his property in

the exercise of Lewis’ non-negotiable right to engage in

lawful employment. There is nothing in the record showing

that Lewis’ claim would directly affect the administration of

benefits under the plan. The pension trust itself is not liable,

and neither the administrators of the plan nor the plan itself

would be liable or burdened in any way.

In holding that Lewis’ claim is preempted by ERISA,

this Court overlooked or misapprehended the rationale of the

recent decision of the United States Supreme Court in

DeBuono vy. N.Y.S.R.-ILA Medical and Clinical Services,

App. 69

__US._, 117 S.Ct. 1747 (1997). There, the United

States Supreme Court held that in determining whether the

preemption doctrine is applicable under ERISA, the words

“relate to” should be narrowly and not broadly interpreted

when considering the preemption doctrine in a field

traditionally occupied by the states -- the regulation of

health, welfare and safety. Clearly, there is nothing in the

South Carolina right to Work Act that is the type of state law

that Congress intended ERISA to supervise.

Moreover, this Court overlooked that in deciding the

preemption issue, the “starting presumption [is] that

Congress does not intend to supplant state law” and that the

burden of overcoming this presumption is considerable.

DeBuono v. NYSA-ILA Medical and Clinical Services, 117

S.Ct. 1747, 1752. Overlooking the rationale of DeBuono,

this Court relied instead on the South Carolina case of Baker

Hospital v. Isaac, 301 S.C. 248, 391 S.E.2d 549 (1996), an

action not involving a non-negotiable public interest right

which “recognized that the pre-emptive effect is a broad

one.” Thus, applying Baker contrary to DeBuono, this Court

interpreted the words “relate to” in a broad sense in reaching

its decision. Further, notwithstanding that the Court

recognized that “those State actions which affect employee

benefit plans in ‘too tenuous, remote or peripheral a

manner’” do not relate to the plan, this Court nevertheless

overlooked this principle in deciding that the preemption

doctrine was applicable here.

¥,

In affirming the decision of the Court of Appeals, this

Court in its opinion states that it was unnecessary for the

Court of Appeals to have addressed the issue of whether

Lewis had stated a cause of action as the conduct that Lewis

complained of did not constitute a violation of the Right to

Work Act.

App. 70

As heretofore contended, Lewis’ action was not

preempted. Not only did Lewis state a cause of action under

the Right to Work Act, but the jury also found that the

Respondent Union violated the Right to Work Act, a finding

unchallenged on appeal.

VI.

In affirming the majority decision of the Court of

Appeals, this Court overlooked or misapprehended, as stated

by Judge Cureton in his dissent, that “the right to work

Statute can not be superseded by agreement, the rights

therein are non-negotiable.” To the same effect see

Brooklyn Savings Bank v. O’Neill, 65 S.Ct. 895 (1945)

(holding that where a private right is granted in public

interest to effectuate legislative policy, waiver so involved

with public interest will not be allowed where it could thwart

public policy which it is designed to effectuate”)

VIL.

In affirming the majority decision of the Court of

Appeals this court apparently overlooked or misapprehended

that in conflict with federal law, it was granting the Union

the liberty of violating the South Carolina Right to Work Act

by the use of force, intimidation and threats to interfere and

attempt to interfere with the exercise of Lewis’ rights to

engage in lawful employment. Allis Chalmers, Corp. v.

Lueck, supra.

VIII.

In affirming the majority decision of the Court of

Appeals, this Court overlooked that the South Carolina Right

to Work Act is of compelling state concern, touching

interests so deeply rooted in local feeling and responsibility

that in the absence of compelling Congressional direction it

can not be inferred that Congress had deprived the States of

the Power to Act, Allis Chalmers, Corp. v. Lueck, supra and

Vaca v. Sipes, supra.

IX.

The majority decision of the Court of Appeals is in

direct conflict with the rationale and principles enunciated

by the United States Supreme Court in Vaca v. Sipes, 386

U.S. 171, 87 S.Ct. 903, 911, (1967) and the cases cited

therein, holding that:

[t]his pre-emption doctrine, however has

never been rigidly applied to cases where***

Congress itself has carved out exceptions to

the Board’s exclusive jurisdiction* **

**#*

filn addition to these congressional

exceptions, this Court has refused to hold

state remedies pre-empted “where the activity

. regulated was merely a peripheral concern of

the Labor Management Act. ***[or] touched

interests so deeply rooted in local feeling and

responsibility that in the absence of

compelling congressional direction, we could

not infer that Congress has deprived the States

of the power to act.

See 29 U.S.C. 413 and 29 U.S.C. 164 as evidence of

Congressional intent to carve out exceptions of preemption

of state laws touching interests deeply rooted local feeling

and responsibility.

App. 72

X.

In affirming the majority decision of the Court of

Appeals, this Court overlooked that federal law does not

preempt under § 301 of the Labor Management Relations

Act (LMRA), 29 U.S.C. 185, as amended by the Labor-

Management Reporting and Disclosure Act of 1959

(LMRDA), 29 U.S.C. 411, et seq., or under § 514 (a) of the

Employee Security Act (ERISA), 29 U.S.C. 1144 (a), state

remedies touching interests so deeply rooted in local feeling

and responsibility that it cannot be inferred that Congress has

deprived the States of the power to act. Vaca v. Sipes, supra.

DeBuono v. N.Y.S.R.-ILA Medical and Clinical Services,

supra, Lingle v. Norge Division of Magic Chef. Inc., supra,

Allis Chalmers, Corp. v. Lueck, supra; 29 U.S. C. 413; 29

U.S.C. 164.

XI.

This Court concluded that the issue with respect to an

award to Petitioner of attorney fees was now moot.

However, the issue relating to attorneys’ fees is still not

moot. It is expected to remain pending until the time for

appealing to the U.S. Supreme Court for certiorari expires,

and if certiorari should be applied for, then continued

pending final disposition by the U.S. Supreme Court.

Respectfully submitted,

HAMMER, HAMMER, CARRIGG

& POTTERFIELD

BY:

HENRY HAMMER

HOWARD HAMMER, P.A.

Post Office Box 1421

Columbia, South Carolina 29201

(803) 799-8600

ELLIOTT & ELLIOTT, P.A.

SCOTT ELLIOTT

721 Olive Street

Columbia, South Carolina 29205

(803) 771-0555

Dated: July 27, 1999

ATTORNEYS FOR PETITIONER

App. 74

IN THE COURT OF COMMON PLEAS

STATE OF SOUTH CAROLINA

COUNTY OF LEXINGTON

N.G. LEWIS, by P.R.

Plaintiff,

-VS-

LOCAL 382 of the IBEW, DAVIS SELF, DORIS M.

JONES, & RONALD GOODALE,

Defendants.

91-CP-32-2734R

FORM OF VERDICT

As To Defendant

Local 382 of the IBEW

I. RIGHT TO WORK

We find for the Defendant.

Foreperson

OR

We find for the Plaintiff dollars

actual damages.

Foreperson

OR

We find for the Plaintiff eighty two thousand five hundred

and sixty dollars plus court costs dollars actual damages and

twenty five thousand dollars punitive damages.

App. 75

/s/Pamela L. Phillips

Foreperson

6-18-93

Date

Lexington, South Carolina

App. 76

IN THE UNITED STATES DISTRICT COURT

COLUMBIA DIVISION OF SOUTH CAROLINA

N.G. LEWIS,

Plaintiff,

VS.

LOCAL UNION 382, INTERNATIONAL

BROTHERHOOD OF ELECTRICAL

WORKERS, AFL-CIO, etal.,

Defendants.

CASE NO. 3:89-1361-01

ANSWER

COMES NOW the defendants, and answers the

complaint of the plaintiff as follows:

l. Admitted upon information and belief

yA Admitted upon information and belief.

a Admitted upon information and belief.

4. It is admitted that plaintiff became a member

of Defendant Local Union in 1948 and that he remained a

member until 1986. Except as herein admitted, all

allegations contained in paragraph 4 of plaintiff's complaint

are denied.

J The allegations contained in Paragraph 5 of

the complaint are explicitly denied.

6. The allegations contained in Paragraph 6 of

the complaint are explicitly denied. |

7. The answers to the allegations contained in

Paragraph | through 6 of the complaint are realleged as if

fully set forth herein.

App. 77

8. The allegations contained in Paragraph 8 of

the complaint are explicitly denied.

9. The answers to the allegations contained in

Paragraphs | through 8 of the complaint are realleged as if

set forth herein.

10.‘ The allegations contained in Paragraph 10 of

the complaint are explicitly denied.

11.‘ The allegations contained in Paragraph 11 of

the complaint are explicitly denied.

AND FOR A FIRST FURTHER ANSWER AND

DEFENSE to plaintiffs complaint, defendants say and

allege:

12. This action has been brought beyond the

applicable Statute of Limitations.

AND FOR A SECOND FURTHER ANSWER AND

DEFENSE to plaintiff's complaint, defendants say and

allege:

13. The allegations in plaintiff's complaint fail to

state a claim upon which relief can be granted, and should

therefore be dismissed pursuant to Rule 12 of the Federal

Rules of Civil Procedure.

WHEREFORE, defendant respectfully pray the court

as follows:

:. That plaintiff recover nothing of defendant

and that this action be dismissed;

2. That the costs of this action, including a

reasonable attorney's fee, be taxed against plaintiff;

4. For such other and further relief as to the

Court may seem just and proper.

This the 28" day of June, 1989.

/s/LARRY L. EUBANKS

Attorney for the Defendants

Suite 300, BB&T Building

8 West Third Street

Winston-Salem, NC 27101

Telephone: (919) 723-0741

App. 78

IN THE UNITED STATES DISTRICT COURT

COLUMBIA DIVISION OF SOUTH CAROLINA

N. G. Lewis,

Plaintiff,

VS.

Local No. 382, International Brotherhood of Electrical

Workers (AFL-CIO, et al.,

Defendants.

Case No. 3:89-1361-01

MOTION TO REMAND

Plaintiff moves the Court for an Order remanding this

cause to the Court of Common Pleas for Lexington County,

South Carolina, on the ground that this action is brought, not

under federal law, but solely under state law on three causes

of action arising out of violation by Defendants of the South

Carolina Right to Work Act, resulting in termination of

union membership, for which the Plaintiff seeks damages for

mental anguish, humiliation, extreme emotional distress, loss

of future benefits and the costs of purchasing same, and thus

the case was improperly removed from the Court of

Common Pleas for Lexington County.

HOWARD HAMMER, P.A.

1019 Assembly Strect

Columbia, South Carolina 2920]

SCOTT ELLIOTT

Post Office Box 607

Columbia, South Carolina 29202

I.D. #705

App. 79

BY: /s/ Howard Hammer

HOWARD HAMMER, P.A.

I.D. #1695

Attorneys for Plaintiff

June 21, 1989

App. 80

IN THE UNITED STATES DISTRICT COURT

COLUMBIA DIVISION OF SOUTH CAROLINA

N. G. Lewis,

Plaintiff,

VS.

Local No. 382, International Brotherhood of Electrical

Workers (AFL-CIO), et al.,

Defendants.

Case No. 3:89-1361-0]

MEMORANDUM IN SUPPORT

OF MOTION TO REMAND

This matter is before the Court on Plaintiff's Motion

to Remand.

The Summons and Complaint in this action were

filed in the Court of Common Pleas for Lexington County

on April 24, 1989,

The Complaint alleges causes of action under the

Right to Work Act of South Carolina, 1976 Code Section 41-

7-10; that the Defendants wrongfully, willfully, wantonly

and by outrageous conduct conspired to violate the exercise

of Plaintiff's right to work, for which he seeks actual and

punitive damage, not against any pension plan, or its

administrator, but against the individual Defendants, for

mental anguish, humiliation, emotional’ distress, the loss of

future retirement benefits and the cost to purchase similar

benefits.

App. 81

ARGUMENT

THIS CASE SHOULD BE REMANDED

BECAUSE THE COMPLAINT STATES

CAUSES OF ACTION (VIOLATION OF

SOUTH CAROLINA RIGHT TO WORK

ACT, OUTRAGEOUS CONDUCT,

CONSPIRACY) NOT UNDER ANY

FEDERAL LAW, BUT RATHER SOLELY

UNDER STATE LAWS, — RIGHTS,

OBLIGATIONS AND DUTIES’ FOR

RESULTANT DAMAGES TO PLAINTIFF.

Defendants, in their Petition for Removal, claim that

this is a suit for benefits under the federal Employee

Retirement Income Security Act, (ERISA) 29 U.S.C. 1132,

1140, which preempts state law and thus permits removal to

the federal court. This is not so.

Contrary to the claim of Defendants, this is not a suit

to recover benefits under the terms of a plan or to clarify

Plaintiff's rights under the term of a plan as provided by 29

U.S.C. 1132 (a)(1). Reference to the Complaint clearly

shows that this action is brought under state law on three

causes of action (violation of South Carolina Right to Work

Act, 1976 Code Section 41-7-10 et seq., outrageous conduct,

conspiracy) for damages allegedly caused by the willful,

wanton and outrageous conduct of Defendants, who in

violation of the South Carolina Right to Work Act, conspired

to interfere with Plaintiff in the exercise of his right to work,

resulting in termination of Plaintiff's membership in the

union, and actual and punitive damages therefrom, consisting

of mental anguish, humiliation, loss of future benefits and

the cost of purchasing same, all in accordance with the

authority of Layne _v. Intern. Brotherhood of Electrical

Workers, 271 S.C. 346, 247 S.E. 2d 346 (1978).

In support of Plaintiff's Motion to Remand, we call to

the attention of the Court a similar case on point, Rody v.

App. 82

Midland Enterprise, Inc., 688 F. Supp. 129 (1988), copy of

opinion attached. There the District Judge, in an analogous

factual situation, rejected Defendant's contention that

Plaintiff's action was a claim under ERISA and in holding

that the case should be remanded, reasoned that the suit was

not preempted by ERISA because, as here, (1) the Complaint

does not allege a violation of ERISA, (2) the allegations of

the Complaint do not show that Defendants were motivated

for the purpose of interfering with Plaintiff's rights under the

plan; (3) the suit is not against the plan or its administrator,

(4) the Plaintiff does not claim benefits under the plan or

damages against the plan, but against the individual

Defendant, and (5) the relationship of the suit to ERISA, if

any, is too remote, tenuous and insubstantial to support

jurisdiction for removal.

The rationale of the District Judge in Rody, applies

with equal force to the facts in the present case. Here, as

there, the Complaint does not allege a violation of ERISA:

does not allege that Defendant's conduct was motivated for

the purpose of interfering with Plaintiff's rights under a plan,

as distinguished from interfering with the exercise of

Plaintiff's right to work under the Right to Work Act of

South Carolina; the suit is not against the plan or its

administrator; the Plaintiff does not claim benefits under the

plan or damages against the plan, but rather against the

individual Defendants; and relationship of the suit to the

plan, if any, is too remote, tenuous and insubstantial to

support jurisdiction for removal.

Also, compare Kimbrell v. Jolog Sportswear, Inc.,

239 S.C. 415, 123 S.E. 2d 524 (1962), in which the South

Carolina Supreme Court, relying on decisions of the United

States Supreme Court, pointed out that:

"State jurisdiction, however, has not been

preempted where the consequences of the

conduct involved were of compelling State

interest

App. 83

XXX

"The complaint is based upon an alleged

criminal and tortious violation of the rights of

the plaintiff for which the State law affords a

remedy for the recovery of both actual and

punitive damages. Where, as here, the

tortious conduct is of compelling state interest

affecting the public welfare and security of its

citizens, the state remedy is not excluded by

the National Labor Relations Act."

To the same effect is Gregory Electric Co. v.

Custodes Construction Co., (1970, D.C.S.C.) 312 F. Supp.

30, relating to the South Carolina Right to Work Act.

Where, as here, the state action is only of peripheral

concern, involves conduct in which the state has an

overriding interest and is deeply rooted in local concern, and

there is little risk that the state cause of action will interfere

with the effective administration of federal labor policies, the

state action is not preempted by the federal statute, Farmer v.

United Broth. of C & J of America, Local 25, 430 U.S. 290,

97 S. Ct. 1056 (1977); United Const. Workers, etc. v.

Laburnum Const. Corp., 347 U.S. 565, 74 S. Ct. 833 (1954).

In the alternative, should the Court determine that the

Defendants' removal action was proper, the matter should

still be remanded to state court in light of the facts that

Plaintiff filed suit in state court and that the crucial and

majority of issues necessary to determine the Defendants'

liability in the suit involve state law questions. 29 U.S.C.

1132(a) provides that:

(1) Except for actions under subsection

(a)(1)(B) of this section, the District Courts of

the United States shall have exclusive

jurisdiction of civil actions under this

subchapter brought by the secretary or by a

App. 84

Participant, jurisdiction and District Courts of

the United States shall have concurrent

jurisdiction of actions under ae USE.

1132(a)(1)(B)."

29 U.S.C. 1132(a)/ 1)(B) provides that

"A civil action may be brought -

(1) by a participant or beneficiary -

(B) to recover benefits due

to him under the terms of his

plan, to enforce his rights

under terms of the plan, or to

clarify his rights to future

benefits under the terms of the

plan;"

Thus, assuming, arguendo, that Plaintiffs suit is a

claim under applicable ERISA statutes, then his claim under

applicable ERISA statutes would appear to be a claim for

benefits under the plan. As such the Statutes provide for

concurrent state and federal jurisdiction and Plaintiff's action

is maintainable in state court. However, as set forth above,

Plaintiff's Complaint does not make a claim for benefits due

under the plan as none could be claimed under the plan

because his membership in the union was terminated prior to

his right to claim benefits under the plan.

CONCLUSION

For the foregoing reasons, in accordance with the

facts and the applicable law, it is respectfully submitted that

the cause should be remanded to the Court of Common Pleas

for Lexington County.

App. 85

Respectfully submitted,

HOWARD HAMMER, P.A.

1019 Assembly Street

Columbia, South Carolina 29201

SCOTT ELLIOTT

Post Office Box 607

Columbia, South Carolina 29202

1.D. #705

By: /s/_ Howard Hammer

HOWARD HAMMER, P.A.

[.D. #1695

Attorneys for Plaintiff

Walter W. RODY

Vv.

MIDLAND ENTERPRISES, INC. and

Port Allen Marine Services, Inc.

Civ. A. No. 88-151-A.

United States District Court,

M.D. Louisiana.

May 6, 1988.

ENTERED: MAY 6, 1988

Former employee brought suit against former

employer for wrongful discharge. After removal, former

employee moved to remand. The District Court, John V.

Parker, Chief Judge, held that claim was not a claim under

Employee Retirement Security Act as to which district court

would have had federal question jurisdiction, and could not

be removed.

Motion granted.

Removal of Cases

Former employee's claim against former employer

for wrongful discharge prior to fully vesting in retirement

plan was not a claim under the Employee Retirement Income

Security Act as to which federal district court would have

had federal question jurisdiction, and could not be removed.

28 U.S.C.A. § 1331; Employee Retirement Income Security

Act of 1974, §§ 502, 502(a), 510, 29 U.S.C.A. §§ 1132,

1132(a), 1140.

App. 87

John Dale Powers, Powers, Vaughn & Clegg, Baton

Rouge, La., for plaintiff.

Cornelius R. Hensel, S. Mark Klyza, Kullman,

Inman, Bee & Downing, New Orleans, La., for defendants.

RULING ON MOTION TO REMAND

JOHN V. PARKER, Chief Judge.

This matter is before the court on plaintiffs motion to

remand. Defendants have filed an opposition. There is no

need for oral argument.

On December 30, 1987, plaintiff Walter W. Rody

filed this action in the 19th Judicial District Court for the

parish of East Baton Rouge, Louisiana, against Midland

Enterprises, Inc. and Port Allen Marine Services, Inc., as his

former employers. Plaintiff alleges that he became the

Director of New Construction Marketing for Midland

Enterprises on October 27, 1986, at which time Midland

allegedly made a commitment to retain plaintiff until he

would be fully vested in Midland's retirement plan on August

16, 1988. Plaintiff was allegedly terminated on January 17,

1987 because of a "conflict of interest" (i.e. solicitation of

fleeting and mooring business on behalf of a corporation

formed by Rody). Plaintiff seeks damages for wrongful

discharge, including loss of salary and benefits.

On February 22, 1988, defendants Port Allen Marine

and Midland Enterprises, Inc. removed this action, alleging

they had been served on January 22 and 25, respectively.

Defendants allege that plaintiff's claim for wrongful

discharge prior to vesting in Midland's retirement plan

necessarily constitutes a claim under the Employee

Retirement Income Security Act (ERISA), 29 U.S.C.

Sections 1132, 1140. Consequently, it is alleged that this

court has jurisdiction pursuant to 28 U.S.C. Section 1331.

On March 28, 1988, plaintiff filed the motion to

remand presently before the court. Plaintiff argues that his

App. 88

claim does not constitute a claim under ERISA--that it is not

a suit for benefits but one for damages for wrongful

discharge.

In opposition to the motion to remand, defendants

argue that plaintiffs allegations amount to a violation of

Section 1140, which provides in pertinent part as follows:

"It shall be unlawful for any person to

discharge. .. a participant .. . for the purpose

of interfering with the attainment of any right

to which any such participant may become

entitled under the plan, this subchapter, or the

Welfare and Pension Plans Disclosure Act..."

Defendants further argue that plaintiffs claims fall

within the civil enforcement provision of ERISA, 29 U.S.C.

Section 1132(a) (empowering participants to sue for

recovery of benefits), and are therefore preempted by ERISA

and removable despite the fact that the preemption defense is

not disclosed on the facts of plaintiff's petition. Defendants

note that the Supreme Court recently excepted ERISA cases

from the well-pleaded complaint rule in Metropolitan Life

Ins. Co. v. Taylor, 481 U.S. --- 107 S.Ct. 1542, 95 L.Ed.2d

55 (1987). See Beers v. North American Van Lines, Inc.,

836 F.2d 910, 913 n. 3 (Sth Cir. 1988) (explaining the

limited nature of this exception to the well-pleaded

complaint rule).

Plaintiff correctly points out that defendants have

misconstructed the lawsuit. Contrary to the argument of the

defense, plaintiff has not alleged a violation of Section 1140

because the allegations relating to defendant's motivation in

terminating plaintiff relate to "conflict of interest". There are

no allegations which in any way indicate that plaintiff was

discharged to prevent his benefits vesting under the

retirement plan. Section 1140 clearly requires a "purpose of

interfering with" the participant's rights under the plan. Such

App. 89

improper motivation is not alleged here. See Morningstar v.

Meijer, Inc., 662 F.Supp. 555 (E.D.Mich.1987).

The court further agrees with plaintiff that this is not

a suit for benefits under a retirement plan. See Morningstar,

supra at 556-557. The only relationship that ERISA has to

this action relates to plaintiff's claim for damages resulting

from the loss of retirement benefits. Plaintiff does not claim

benefits; he claims that a breach of his contract has denied

him future benefits to which he would otherwise have

become entitled. His claim for damages, as plaintiff points

out, is not against the Plan, but against the employers who

allegedly breached the contract. As noted in Morningstar,

supra, damages will likely be measured by the cost to

plaintiff to purchase substantially similar benefits to those

lost by reason of the alleged breach. The court agrees with

the rationale expressed by Judge Churchill in Morningstar,

supra. This relationship is too remote, tenuous and

insubstantial to support jurisdiction for removal.

Accordingly, the court hereby grants plaintiff's

motion to remand and this action will be remanded to the

19th Judicial District for the Parish of East Baton Rouge,

Louisiana.

App. 90

IN THE UNITED STATES DISTRICT COURT

COLUMBIA DIVISION OF SOUTH CAROLINA

N. G. Lewis,

Plaintiff,

VS.

Local No. 382, International Brotherhood of Electrical

Workers (AFL-CIO), et al.,

Defendants.

PETITION FOR REMOVAL

TO THE JUDGES OF THE UNITED STATES

DISTRICT COURT FOR THE COLUMBIA DIVISION OF

SOUTH CAROLINA.

The defendants herein respectfully show:

l. On the 24th day of April, 1989, an action was

commenced against defendants in the Court of Common

Pleas in the State of South Carolina in and for the County of

Lexington, entitled N. G. Lewis. Plaintiff, against Local No.

381, International Brotherhood of Electrical Workers (AFL-

CIO), Davis Self, Larry Poole, Jerome Jenkins, Doris M.

Jones, Bill Davis, John C. Davis. and Ronald Goodale,

Defendants, Docket No. 89-CP-32-1054 by the service upon

defendants of a Summons and Complaint, copies of which

are annexed hereto. The defendants were served with notice

on May 1, 1989. No further proceedings have been had

therein.

pe The above-described action is a Civil Action

of which this Court has Original jurisdiction under the

provisions of Title 28, United States Code 1331, and is one

which may be removed to this Court by the defendants —

App. 91

therein, pursuant to the provisions of Title 28, United States

Code, Section 1441 in that:

The plaintiff was a member of the defendant Local

Union in 1948 and remained a member until 1986, during

which time the plaintiff paid dues out of which the Local set

aside a certain amount into the Local Union Pension Plan.

The plaintiff expected a pension therefrom upon his

retirement. The plaintiff worked for a non-union contractor

in violation of Union rules. Because of his actions and

knowing violation of Union rules, the Union, as a

disciplinary action, fined him. He refused to pay the fine or

further dues, and he therefore lost his membership. The

plaintiff alleges the defendants violated South Carolina's

Right to Work Act, S.C. Code #41-7-10, et seq. (1976) and

thereby brings this action in the Court of Common Pleas in

the County of Lexington, South Carolina on April 24, 1989.

This Petition for Removal is first based on the fact

that ERISA preempts the application of the South Carolina

Right to Work Law. Section 514(a) of ERISA states that,

except subject to express exceptions set forth in the statute:

the provisions of this Subchapter [I

‘Protection of Employee Benefit Rights,'] and

Subchapter III ['Plan Termination Insurance'}

shall supercede any and all State laws as they

may now or hereafter relate to any employee

benefit plan described in Section 1003(e) of

this Title and not exempt under Section

1003(b) of this Title.

29 U.S.C. §1144(a)

As an employee benefit plan “established [and]

maintained...by...[an] organization representing employees

engaged in commerce or in any industry or activity affecting

commerce", 29 U.S.C. §1003(a), the International

Brotherhood of Electrical Workers Pension Fund comes

within the ambit of the preemption section.

App. 92

29 U.S.C. §1144(a) preempts State laws "as they may

now or hereafter relate to" a benefit plan. The South

Carolina Right to Work Law does not, by its terms, deal with

or obviously "relate to" pension funds. However, Lewis'

purpose in invoking it in this case is to bar the Union from

using internal discipline to interfere with his pension rights.

This "indirect" relationship brings the Right to Work Law

under ERISA. The Supreme Court had made clear that the

term “relate[s] to" was intended by Congress to be broadly

read.

ERISA preempts the State Court action. Because the

instant case is under ERISA, a Federal question is present.

Nevertheless, the instant case also Satisfies the ERISA

exception for 28 U.S.C. §1331. In Metropolitan Life v.

Taylor, 55 USLW 4468 (April 6, 1987), the Court created an

exception to the general rule (the "well pleaded complaint"

rule which is that unless the complaint itself raised issues of

Federal law, a case is not removable to Federal Court under

28 U.S.C. §1331) for certain ERISA actions. To be

removable based on a defense brought under ERISA, the

case must satisfy two criteria: (1) the defense must assert that

the State claims under which the case was brought are

preempted by ERISA; and (2) the case must fall within the

scope of Section 502(a)(1)(B), the Civil enforcement

provision of the Act. Metropolitan Life, 55 USLW at 4469.

This case would clearly satisfy the criteria: F irst, the

defendants hereby assert ERISA preempts the State law

claim. Second, the case at bar falls within the scope of

Section 502(a)(1)(B). 501 (a)(1)(B) states that:

A Civil Action may be brought...

(1) by a participant or beneficiary...

(B) to recover

benefits due to him under the

terms of his plan, to enforce

App. 93

his rights under the terms of

the plan, or to clarify his rights

to future benefits under the

terms of the plan[.]

29 U.S.C. §1132(a)(1)(B)

Lewis is bringing this action as a wrongfully

disciplined member of the International Brotherhood of

Electrical Workers, purporting to be a "beneficiary" of the

pension plan. Lewis, in claiming internal discipline cannot

be used to interfere with his pension rights, is, in essence,

seeking to "enforce his rights under the terms of the Plan or

to clarify his rights to future benefits under the terms of the

Plan." Therefore, the instant case is a case that "could have

been brought" under Section 514(a)(1)(B), and again is

removable.

WHEREFORE, defendants pray that the above action

now pending against them in the Court of Common Pleas of

South Carolina in and for the County of Lexington, be

removed therefrom to this Court.

RESPECTFULLY SUBMITTED, this the 26th day

of May, 1989.

/s/ Larry L. Eubanks

LARRY L. EUBANKS

Attorney for the Defendants

Suite 300, BB&T Building

8 West Third Street

Winston-Salem, NC 27101

Telephone: (919) 723-0741

South Carolina Bar No. 1923

App. 94

IN THE COURT OF COMMON PLEAS

COUNTY OF LEXINGTON

N. G. Lewis,

Plaintiff,

VS.

Local No. 382, International Brotherhood of Electrical

Workers (AFL-CIO), Davis Self, Larry Poole, Jerome

Jenkins, Doris M. Jones, Bill Davis, John C. Davis and

Ronald Goodale,

Defendants.

COMPLAINT

Plaintiff above named complaining of Defendant's

alleges:

FOR A FIRST CAUSE OF ACTION

l. That Plaintiff is a resident and citizen of the

State of South Carolina, County of Richland.

2. That the Defendant, Local No. 382,

International Brotherhood of Electrical Workers (AFL-CIO),

is an unincorporated association Owning property and doing

business in the County of Lexington.

3. That on information and belief, the

Defendants, Davis Self, Larry Poole, Jerome Jenkins, Doris

M. Jones, Bill Davis and John C. Davis are residents and

citizens of the State of South Carolina, Counties of

Lexington and Richland.

4. That Plaintiff became a member of Defendant

local union in 1948 and remained a member until 1986, a

period of over thirty-five (35) years during which time he

paid dues and made contributions to said Defendant Local

Union and to said Defendant's Local Union Pension Plan

App. 95

with the expectation of drawing a pension upon his

retirement.

5. That on or about February 16, 1987 and for

some time prior thereto, the individual Defendants, acting

individually and as agents of the Defendant Local No. 382,

International Brotherhood of Electrical Workers Union,

jointly and severally, in violation of the South Carolina's

Right to Work Act, S.C. Code #47-7-10, et seq. (1976),

attempted to and did interfere with Plaintiff's exercise of his

right to work, and did, thereby cause him to lose his pension

benefits.

6. That as a result and consequence of the

aforementioned unlawful conduct of Defendants, jointly,

severally or individually, Plaintiff has suffered a loss of his

pension and has been otherwise damaged.

FOR A THE SECOND CAUSE OF ACTION

r That the Plaintiff repeats and reiterates herein

the allegations of paragraphs 1-6 as though incorporated

verbatim herein.

8. That the aforesaid actions of the Defendants

were reckless, willful, wanton, oppressive and constituted

extreme and outrageous conduct, as the result of which the

Plaintiff has suffered extreme emotional distress,

nervousness, worry, loss of sleep and other emotional ills, all

to his damage, and has been deprived of income and other

benefits he would have had.

FOR A THE THIRD CAUSE OF ACTION

9. That the Plaintiff repeats and reiterates herein

the allegations of paragraphs 1-8 as though incorporated

verbatim herein.

10. That the Defendants, in violation of South

Carolina's Right to Work Act, conspired jointly and

severally, in combination and with each other, by force,

App. 96

intimidation and threats, to deprive Plaintiff of the exercise

of his right to work under the aforesaid act, as a result of

which Plaintiff has suffered damages.

11. | That by reason of the premises aforesaid, and

as a direct result thereof, the Plaintiff has been and will be

deprived of the benefit of the monies paid to Defendant

Local Union over the years during which he was a member,

he has suffered and will suffer extreme distress, humiliation,

nervousness, loss of sleep and other emotional ills, and he

has been otherwise damaged.

WHEREFORE, Piaintiff prays for judgment against

the Defendants, jointly, severally and in the alternative, for

actual damages in the sum of Five Hundred Thousand

Dollars ($500,000.00) and punitive damages in such amount

as may be fair, just, adequate and appropriate, and for

attorney's fees together with the costs of this action.

HOWARD HAMMER, P.A.

1019 Assembly Street

Columbia, South Carolina 29201

SCOTT ELLIOTT

Post Office Box 607

Columbia, South Carolina 29202

BY: /s/ Howard Hammer

HOWARD HAMMER, P.A.

Attorneys for Plaintiff

April 18, 1989.

App. 97

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

FEDERAL

U.S. Constitution, Article VI

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof; and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the supreme Law of the Land;

and the Judges in every State shall be bound

thereby, any thing in the Constitution or Laws

of any State to the Contrary notwithstanding.

U.S. Constitution, Amendment X

The powers not delegated to the United States

by the Constitution, nor prohibited by it to the

States, are reserved to the States respectively,

or to the People.

Removal of Cases, 28 U.S.C. § 1447

28 U.S.C. § 1447 (c), as amended

A motion to remand the case on the basis of

any defect in removal procedure must be

made within 30 days after the filing of the

notice of removal under § 1446 (a). If at any

time before final judgment it appears that the

district court lacks subject matter jurisdiction,

the case shall be remanded. An _ order

remanding the case may require payment of

just costs and any actual expenses, including

attorney fees, incurred as a result of the

App. 98

removal. A certified copy of the order of

remand shall be mailed by the clerk to the

clerk of the State court. The State court may

thereupon proceed with such case.

28 U.S.C. § 1447 (d)

An order remanding a case to the State court

from which it was removed is not reviewable

on appeal or otherwise, except that an order

remanding a case to the State court from

which it was removed pursuant to section

1443 of this title shall be reviewable by

appeal or otherwise.

Labor Management Relations Act, as amended (LMRA), 29

U.S.C.

Labor

§ 185 (a)

Suits for violation of contracts between an

employer and _a_ labor _ organization

representing employees in an_ industry

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 controversy

or without regard to the citizenship of the

parties.

Management Reporting and Disclosure

(LMRDA), Subchapter II, 29 U.S.C. § 413

Nothing contained in this subchapter shall

limit the rights and remedies of any member

of a labor organization under any State or

Federal law or before any court or other

App. 99

Act

tribunal, or under the constitution and bylaws

of any labor organization.

Employee Retirement Income Security Act (ERISA), 29

U.S.C. § 1144 (a)

Except as provided in subsection (b) of this

section, the provisions of this subchapter and

subchapter III of this chapter shall supersede

any and all State laws insofar as they may

now or hereafter relate to any employee

benefit plan described in section 1003 (a) of

this title and not exempt under section

1003(b) of this title. This section shall take

effect on January 1, 1975.

STATE

SOUTH CAROLINA RIGHT TO WORK ACT

S.C. Code Ann. § 41-7-70(1). Interference with right to

work, compelling labor organization membership, picketing,

and the like made unlawful.

It shall be unlawful for any person,

acting alone or in concert with one or more

persons:

(1) By force, intimidation, violence or

threats thereof, or violent or insulting

language, directed against the person

Or property, or any member of the

family of any person (a) to interfere,

or attempt to interfere, with such

person in the exercise of his right to

work, to pursue or engage in, any

lawful vocation or business activity, to

App. 100

enter or leave any place of his

employment, or to receive, ship or

i deliver materials, goods or services

: not prohibited by law or (b) to compel

or attempt to compel any person to

4 join, or support, or refrain from

joining or supporting any labor

; organization; or

S.C. Code Ann. § 41-7-80. Penalties.

Any employer, labor organization or other

person whomsoever who shall violate any

z provision of this chapter shall be guilty of a

misdemeanor, and, upon conviction thereof in

any court of competent jurisdiction, shall be

punished by imprisonment for not less than

ten nor more than thirty days or by a fine of

| not less than ten nor more than one thousand

dollars or by both in the discretion of the

court.

S.C. Code Ann. § 41-7-90. Remedy for violation of rights;

relief which court may grant.

Any person whose rights are adversely

affected by any contract, agreement,

assemblage or other act or thing done or

threatened to be done and declared to be

unlawful or prohibited by this chapter shall

have the right to apply to any court having

general equity jurisdiction for appropriate

relief. The court, in any such proceeding,

may grant and issue such restraining, and

| other, orders as may be appropriate, including

an injunction restraining and enjoining the

performance, continuance, maintenance or

App. 101

commission of any such contract, agreement,

assemblage, act or thing, and may determine

and award, as justice may require, any actual

damages, costs and attorneys’ fees which

have been sustained or incurred by any party

to the action, and, in the discretion of the

court or jury, punitive damages in addition to

the actual damages. The provisions of this

section are cumulative and are in addition to

all other remedies now or hereafter provided

by law.

App. 102

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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