Petition for Writ of Certiorari — Fluor Hanford, Inc. v. Brundridge

Fi

O02 896uC 4 2002

No. 02-

trae am aco ncnceremnernccomnttllab testinal ita pe os

IN THE

Supreme Court of the Untted States

OCTOBER TERM, 2002

FLUOR HANFORD, INC., AND

FLUOR FEDERAL SERVICES, INC.,

Petitioners,

Ws

SCOTT BRUNDRIDGE, DONALD HODGIN, JESSIE JAYMES,

CLYDE KILLEN, PEDRO NICACIO, SHANE O’ LEARY,

RAYMOND RICHARDSON, JAMES STULL, RANDALL WALLI,

DAVID FAUBION, AND CHARLES CABLE,

Respondents.

On Petition for Writ of Certiorari to the

Court of Appeals of Washington

PETITION FOR WRIT OF CERTIORARI

WILLIAM R. SQUIRES III CHRISTOPHER LANDAU

SUMMIT LAW GROUP _ Counsel of Record

1505 Westlake Ave. N., KIRKLAND & ELLIS

Suite 300 655 Fifteenth Street, N.W.

Seattle, WA 98109 Washington, D.C. 20005

(206) 676-7054 (202) 879-5000

December 4, 2002

QUESTIONS PRESENTED

1. Whether respondents may circumvent the exclusive

jurisdiction of the National Labor Relations Board over

alleged unfair labor practices by filing in state court an

ostensible state-law claim for wrongful discharge in

violation of state public policy.

2. Whether respondents may circumvent the arbitration clause

in their collective bargaining agreement by invoking a

presumption against arbitration under the Federal

Arbitration Act.

li

RULE 29.6 STATEMENT

Pursuant to Rule 29.6, petitioners Fluor Federal Services,

Inc., and Fluor Hanford, Inc., hereby state that they are wholly

owned subsidiaries of Fluor, Inc., a publicly traded company.

ill

TABLE OF CONTENTS

Page

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PERTINENT STATUTORY PROVISIONS ...........-- 3

ip oo ego ey 8 ot |. aera 4

REASONS FOR GRANTING THE WRIT ............. 6

I. THE COURT BELOW ERRED BY HOLDING

THAT RESPONDENTS’ WRONGFUL

DISCHARGE CLAIM IS NOT PREEMPTED BY

THE NATIONAL LABOR RELATIONS ACT ...... 6

Il. THE COURT BELOW ERRED BY APPLYING A

PRESUMPTION AGAINST ENFORCEMENT OF

ARBITRATION CLAUSES CONTAINED IN

COLLECTIVE BARGAINING AGREEMENTS .... 14

Ee rer era ere ee 18

iv

Vv

TABLE OF AUTHORITIES

Page(s)

Cases

Air Line Pilots Ass’n, Int’l v. Northwest Airlines, Inc.,

199 F.3d 477 (D.C. Cir.),

vacated,

199 F.3d 487 (D.C. Cir. 1999) (en banc),

reinstated,

211 F.3d 1312 (D.C. Cir. 2000) (en banc) ...... 17, 18

Albertson’s, Inc. v. United Food &

Commercial Workers Union,

SF Se Fa SE ob itn ended wd slnasiaes 17

Alexander v. Gardner-Denver Co.,

Sn Es dca oud edeied otek ee 15-18

Amalgamated Ass'n of Street, Electric Ry. &

Motor Coach Employees v. Lockridge,

Gee 0 | a ne 7, 8,11

Austin v. Owens-Brockway Glass Container, Inc.,

PPE FRE iby 80h ns bh ned es t08 16, 17

Brisentine v. Stone & Webster Eng’g Corp.,

tee & Fo csh te Oe 5) re 17, 18

Coca-Cola Bottling Co. v. Soft Drink &

Brewery Workers Union Local 812,

PE Fe Oe BE eC a ebh0 Soke bh kens 15

Circuit City Stores, Inc. v. Adams

BE Se EE Fk tees cw wk eli eres 5,14

Department of Labor & Indus. v. Dirt & Aggregate, Inc.,

BF Fale POSTE SOD. x cc tbdrnpecwsteeece 13

Farmer v. United Bhd. of Carpenters and Joiners

et re re eaten 12

vi

Gilmer v. Interstate/Johnson Lane Corp.,

es rere ae 15-17

Harrison v. Eddy Potash, Inc.,

112 F.3d 1437 (10th Cir. 1997),

vacated on other grounds, 524 U.S. 947 (1998) ..... 17

Hunter v. Earthgrains Co. Bakery,

Bi FG POR GG, Be v.vb 40 séwbed cnevescss 17

International Union, UAW v. Russell,

Fae AP GREE Cah oa diel we bigead Uh eek eases 12

Inter-Modal Rail Employees Ass'n v.

Burlington N. & Santa Fe Ry. Co.,

73 Cal, App. Gb SIS CIGDP) . acces nc ccececss 9-12

Linn v. United Plant Guard Workers,

SOs Sie SUARUNE 0b cb k5 0k cadenees Cer tt a 12

Mastrobuono v. Shearson Lehman Hutton, Inc.,

SEG AA. Sek GEG Sid. ok FANN Ri EEDA Ve 14

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.,

RTS UB: GOO TOS OP ia iGo Ka wE Vea RR A 14

Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,

GEO UE. T CU 0 ik ies ae ees 14

New York Tel. Co. v. New York Dep’t of Labor,

GRO UB. SIP CPG Se i's bes 0 dk see oek ia 13

NLRB v. City Disposal Sys. Inc. |

GES Tis GE GETEE Soars bu vebvctenshubveresiets 8

Paige v. Henry J. Kaiser Co.,

S26 F.24 857 (Sth Cir. 1967)... . cece ccess 11,12

Penny v. UPS,

LOG Fe Se I EPMO) ev eccceseaued nes cen 17

Perry v. Thomas,

ER Se err ey ere re era he 14

Platt v. Jack Cooper Transport Co.,

959 F.2d 91 (8th Cir. 1992) .......-- eee creer 9-12

Pryner v. Tractor Supply Co.,

109 F.3d 354 (7th Cir. 1997) .....--- eee eee ee eee 17

Rodriguez de Quijas v. Shearson/American Express, Inc.,

490 U.S. 477 (1989) .. 0... eee eee reer eee 14, 18

Rogers v. NYU,

220 F.3d 73 (2d Cir. 2000) (per curiam) .....------ 17

San Diego Bldg. Trades Council v. Garmon,

359 U.S. 236 (1959) ..... eee cee eee teen eeeee 6-13

Sears, Roebuck & Co. v.

San Diego Cty. Dist. Council of Carpenters,

436 U.S. 180 (1978) ...... eee eee eee eet 12

Shearson/American Express Inc. v. McMahon,

482 U.S. 220 (1987) .. 0... cece eee eee renee: 14

Torrez v. Consolidated Freightways Corp.,

58 Cal. App. 4th 1247 (1997) ...----- sees reer 17

UAW v. Wisconsin Employment Relations Bd.,

351 US. 266 (1956) ....- eee eee eee eee ners: 12

United Constr. Workers v. Laburnum Constr. Corp.,

347 US. 656 (1954) ... 2... eee eee eee etter 12

Varner v. National Super Markets, Inc.,

94 F.3d 1209 (8th Cir. 1996) ......--- eee eeeees 17

Wisconsin Dep't of Industry, Labor &

Human Relations v. Gould,

475 U.S. 282 (1986) ..... 22 e ee eeeeeee teense 7,11

Wright v. Universal Maritime Service Corp.,

525 US. 70 (1998) .....- eee eee eee eee 15, 16, 18

Youngdahl v. Rainfair, Inc.,

355 USS. 131 (1957) ....-- eee cece ee eee e ee eeees 12

Viii

Statutes and Rules

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INTRODUCTION

This is a case about workers at a federal nuclear facility

who are trying to circumvent an exclusive federal remedial

scheme by pursuing an ostensible state claim in state court.

Respondents are union members who were laid off from their

jobs at a federal nuclear facility in Washington State. They

claim that petitioners, federal contractors at the facility,

wrongfully discharged them in retaliation for being (or

supporting) whistleblowers on workplace-safety issues, in

violation of state public policy. There is no question that

respondents could have challenged their discharge by filing an

unfair labor practice charge before the National Labor

Relatioris Board, or pursuing a grievance in arbitration under

their collective bargaining agreement. The question here is

whether respondents can circumvent these remedies by

pursuing an ostensible state-law claim in state court. Contrary

to the decision below, they cannot.

The Washington Court of Appeals recognized that

respondents’ ostensible state-law claim was presumptively

preempted by the National Labor Relations Act (NLRA),

because it involves conduct at least arguably prohibited by that

statute. But the court held that the claim fell within an

exception to NLRA preemption for matters that “touch on

interests deeply rooted in local feeling and responsibility”—

even though state law does not regulate workplace safety at the

federal nuclear facility, and respondents could have challenged

the same conduct by filing an unfair labor practice charge with

the NLRB. The court thereby allowed a narrow exception to

swallow the rule, and exacerbated an existing conflict of

authority on the exception’s scope.

And even if respondents had a state-law claim that survived

NLRA preemption, the Washington court also erred by

refusing to send that claim to arbitration under the terms of the

parties’ collective bargaining agreement (CBA). Rather than

2

applying the ordinary presumption in favor of arbitration under 4

the Federal Arbitration Act, the court applied a presumption :

against arbitration, holding that an arbitration clause ina CBA

does not waive a judicial forum for employee claims unless the

waiver is “clear and unmistakable.” Once again, the court

erred, and exacerbated an existing conflict of authority on the

application of arbitration clauses in CBAs to employee claims.

The court below thus succeeded in flouting not one but two

fundamental federal policies: (1) the policy favoring federal

resolution of labor disputes, and (2) the policy favoring

arbitration. Indeed, it is hard to imagine a more inappropriate

context for the intrusion of state courts than a labor dispute

over workplace safety at a federal nuclear facility. Because the

Washington court erred, and exacerbated existing conflicts of

authority on both questions presented, this Court’s review is

warranted. ‘

OPINIONS BELOW

The Washington Court of Appeals’ opinion is reported at

109 Wash. App. 347, 35 P.3d 389, and reprinted in the

Appendix (“App.”) at la-13a. The Washington Supreme

Court’s unpublished order denying the petition for

discretionary review is reprinted at App. 14a-15a. The trial

court’s unpublished order granting petitioners’ motion to

dismiss in favor of arbitration and staying the proceedings

pending appeal is reprinted at App. 16a-17a.

JURISDICTION

The Washington Supreme Court denied discretionary

review on August 7, 2002. App. 15a. Justice O’Connor

granted an extension of the time for filing this petition to and

including December 4, 2002. This Court has jurisdiction under

28 U.S.C. § 1257(a).

3

PERTINENT STATUTORY PROVISIONS

Section 7 of the NLRA provides in pertinent part:

Employees shall have the right to self-organization, to

form, join, or assist labor organizations . . . and to

engage in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection

29 U.S.C. § 157.

Section 8 of the NLRA provides in pertinent part:

It shall be an unfair labor practice for an

employer—{1) to interfere with, restrain, or coerce

employees in the exercise of rights guaranteed in

section 157 of this title; . . . (4) to discharge or

otherwise discriminate against an employee because he

has filed charges or given testimony under this

subchapter . . . .

29 U.S.C. § 158.

~ The Federal Arbitration Act provides in pertinent part:

A written provision in . . . a contract evidencing a

transaction involving commerce to settle by arbitration

a controversy thereafter arising out of such contract or

transaction, or the refusal to perform the whole or any

part thereof, or an agreement in writing to submit to

arbitration an existing controversy arising out of such

a contract, transaction, or refusal, shall be valid,

irrevocable, and enforceable, save upon grounds as

exist at law or in equity for the revocation of any

contract.

9 U.S.C. § 2.

4

STATEMENT OF THE CASE

This case arises out of a series of layoffs at the federal

nuclear facility in Hanford, Washington. Petitioners Fluor

Hanford, Inc. and Fluor Federal Services, Inc. (collectively

Fluor) are contractors at that facility. In that capacity,

petitioners employed respondents, who are members of the

United Association of Journeymen and Apprentices of the

Plumbing and Pipe Fitting Industry of the United States and

Canada, Local No. 598, as pipefitters. App. 3a. As union

members, respondents were parties to a collective bargaining

agreement (CBA) that covered every aspect of their

employment at Hanford, and included (1) a guarantee that

workers would not be laid off for refusing to_work in unsafe

conditions, and (2) a binding arbitration agreement. App. 3a.

After Fluor began working at the Hanford facility in 1996,

it implemented a series of reductions in force that eliminated

the jobs of 81 pipefitters, including all eleven respondents.

App. 3a. Five of the respondents, however, allege that they

were terminated for refusing to install an allegedly unsafe

valve, and the other six allege that they were terminated for

supporting the first five.

The union initially filed a grievance pursuant to the CBA

protesting the layoffs of the first five workers, but then

voluntarily withdrew it several months later. App. 3a.

Respondents then filed complaints with the United States

Department of Labor, alleging that Fluor had retaliated against

them in violation of the whistleblower provisions of the Energy

Reorganization Act, 42 U.S.C. § 5851, but again voluntarily

withdrew those’claims shortly thereafter. App. 3a-4a.

Respondents filed this lawsuit in Washington state court in

August 1999, alleging that they had been terminated in

violation of state public policy for being (or supporting)

5

whistleblowers. App. 4a.’ Fluor removed the case to federal

court as completely preempted under Section 301 of the Labor

Relations Act (LMRA), 29 U.S.C. § 185. App. 4a. The district

court (Shea, J., E.D. Wash.), however, held that respondents’

claims were not preempted under the LMRA, and remanded to

state court. App. 4a.

Back in state court, Fluor moved to dismiss respondents’

claims in favor of arbitration under the CBA in light of this

Court’s decision in Circuit City Stores, Inc. v. Adams, 532 US.

105 (2001). App. 4a-5a. The state trial court (Brown, J.)

granted the motion to dismiss, but agreed to stay the

proceedings pending appeal. App. 5a. Respondents appealed

that decision to the Washington Court of Appeals.

The Court of Appeals reversed. App. la-13a. The court

began by rejecting respondents’ argument that the Federal

Arbitration Act (FAA) does not apply at all to arbitration

agreements contained in CBAs. App. 6a (“We conclude as a

matter of law that the FAA is applicable to the CBA in the

present case.”). But the court then proceeded to apply a

presumption against arbitration of employee claims under a

CBA, holding that “an arbitration clause in a CBA will not

waive an employee’s right to a judicial forum unless such a

waiver is clear and unmistakable.” App. 6a (emphasis added).

Applying this “clear and unmistakable” standard, the court

concluded that the arbitration clause in this CBA did not

specifically waive a judicial forum for employee claims of

wrongful discharge in violation of state public policy. App. 6a-

7a.

The court then addressed Fluor’s alternative argument that

dismissal of respondents’ claim was warranted because that

' Respondents also brought a state-law civil conspiracy claim, but that

claim was dismissed below, and respondents did not appeal that dismissal.

App. 4a.

6

claim was preempted by the National Labor Relations Act

(NLRA), 29 U.S.C. §§ 151 et seg. App. 10a-12a. The court

acknowledged that “[u]sually the National Labor Relations

Board (NLRB) is given exclusive jurisdiction over

controversies even arguably involving unfair labor practices

under the NLRA.” App. 10a (emphasis added; citing, inter

alia, San Diego Bldg. Trades Council v. Garmon, 359 U.S.

236, 244-45 (1959)). Although the court acknowledged that

“we find it at least arguable that [respondents] engaged in

concerted activities for mutual aid and protection in the pursuit

of their claim,” the court held that respondents’ claims fell

within an exception to Garmon preemption for claims that

“touch{] matters of clear local interest.” App. 1la. According

to the court, “Washington has a substantial interest in

regulating discriminatory employment practices,” App. 1 la,

and respondents’ wrongful-discharge claim implicates

““Washington’s interest in protecting the health and safety of its

workers and citizens,” App. 12a.

After concluding that respondents’ claim was subject

neither to the exclusive jurisdiction of the NLRB nor the

arbitration agreement in the CBA, the Washington Court of

Appeals reversed the trial court’s ruling and “remanded for

trial.” App. 13a. Petitioners unsuccessfully sought

discretionary review of that decision by the Washington

Supreme Court. App. 14a-15a. This petition follows.

REASONS FOR GRANTING THE WRIT

I. THE COURT BELOW ERRED BY HOLDING THAT

RESPONDENTS’ WRONGFUL DISCHARGE CLAIM

IS NOT PREEMPTED BY THE NATIONAL LABOR

RELATIONS ACT..

Since the enactment of the National Labor Relations Act

(NLRA or Act), 29 U.S.C. §§ 151 et seq., during the New Deal,

it has been a bedrock rule of labor law that allegations of unfair

7

labor practices fall within the exclusive jurisdiction of the

National Labor Relations Board (NLRB or Board). The Act’s

“comprehensive regulation of industrial relations by Congress”

reflects “the fact that Congress has entrusted administration of

the labor policy for the Nation to a centralized administrative

agency, armed with its own procedures, and equipped with its

specialized knowledge and cumulative experience.” San Diego

Bldg. Trades Council v. Garmon, 359 U.S. 236, 239, 242

(1959). By granting the Board exclusive jurisdiction over

alleged unfair labor practices, Congress specifically intended

to preclude state law and state courts from regulating the

conduct involved. See id. at 244-45. Thus, “[w]hen an activity

is arguably subject to § 7 dr § 8 of the Act, the States as well

as the federal courts must defer to the exclusive competence of

the National Labor Relations Board if the danger of state

interference with national policy is to be averted.” Jd. at 245

(emphasis added). “[C]ourts are not primary tribunals to

adjudicate . . . issues” such as “whether the particular activity

regulated by the States [is] governed by § 7 or § 8 or [is],

perhaps, outside both these sections”; rather, “[i]t is essential

to the administration of the [NLRA] that these determinations

be left in the first instance to the National Labor Relations

Board.” Jd. at 244-45; see also Wisconsin Dep't of Industry,

Labor & Human Relations v: Gould, 475 U.S. 282, 286 (1986);

Amalgamated Ass'n of Street, Electric Ry. & Motor Coach

Employees v. Lockridge, 403 U.S. 274, 286-91 (1971). Indeed,

Garmon preemption applies even where (as in Garmon itself)

the Board has declined to exercise its regulatory authority over

the conduct in question. 359 U.S. at 245-46.

The Garmon rule, to be sure, is not without its exceptions.

In particular, courts may apply state law to conduct arguably

protected or prohibited by the NLRA where (1) “the regulated

conduct touche[s] interests so deeply rooted in local feeling and

responsibility that, in the absence of compelling congressional

direction, we could not infer that Congress had deprived the

8

States of the power to act,” or (2) “the activity regulated [is] a

merely peripheral concern” of the Act. Garmon, 359 U.S. at

243-44. These exceptions, however, are narrow, and in no way

undermine “the broad preempt’on principle enunciated in

Garmon.” Lockridge, 403 U.S. at 284.

The Washington Court of Appeals recognized (as it could

hardly avoid doing) that the conduct challenged by respondents

(their discharge for allegedly being or supporting

whistleblowers on workplace-safety issues) was at least

“arguably” within the scope of the NLRA, and thus

presumptively preempted under Garmon. App. 10a-lla. As

the Washington court explained, “we find it at least arguable

that the pipe fitters engaged in concerted activities for mutual

aid and protection in the pursuit of their claim.” Jd. at 11a.’

Notwithstanding that conclusion, the court held that

respondents’ claim escaped Garmon preemption under the

exception for “matters of clear local interest.” App. 11a.

According to the court, “Washington has a substantial interest

in regulating discriminatory employment practices,” id., and

respondents’ wrongful-discharge claim _implicates

“‘Washington’s interest in protecting the health and safety of its

workers and citizens,” id. at 12a; see also id. (“Fluor’s alleged

conduct in terminating employees for refusing to install unsafe

valves in a nuclear waste facility, and in terminating employees

who supported those who refused to install the valves, clearly

touches on interests deeply rooted in local feeling and

5

° Respondents themselves acknowledged below that “their activities may

be characterized as ‘concerted activities’ under the NLRA, which would

normally give rise to disputes being resolved by the NLRB under Garmon,”

and that their opposition to Garmon preemption thus hinged solely on the

“local interest” exception. Answer to Pet’r’s Pet. for Review by the

Supreme Court (3/6/02), at 17 n.6; of NLRB v. City Disposal Sys. Inc., 465

U.S. 822 (1984) (discharge of employee who refused to drive allegedly

~ unsafe truck fell within NLRB’s jurisdiction).

responsibility.”) (citing Jnter-Modal Rail Employees Ass'n v.

Burlington N. & Santa Fe Ry. Co., 73 Cal. App. 4th 918

(1999)).

By holding that respondents’ claim escaped

Garmon preemption under the “local interest” exception, the

Washington court erred, and exacerbated an existing conflict

in authority over the scope of that exception specifically as

applied to claims of wrongful discharge in violation of state

public policy by workers claiming to be whistleblowers on

workplace-safety issues. As the Eighth Circuit explained in

Platt v. Jack Cooper Transport Co., 959 F.2d 91 (8th Cir.

1992), such claims are preempted by the NLRA

notwithstanding a State’s general interest in promoting

workplace safety.

The Platt case, like this one, involved a unionized worker

who brought a state-law claim alleging wrongful discharge in

retaliation for complaining about workplace safety. In sharp

contrast to the court below, the Eighth Circuit held the claim

preempted by the NLRA, and specifically rejected the

application of the “local interest” exception. Jd. at 94-95. In

doing so, the court did not gainsay the local interest in

protecting whistleblowers who raise concerns about workplace

safety. See id. at 95 (“[W]e-have no doubt that California, like

the federal government, has a strong interest in protecting

workers who make job safety complaints, an interest reflected

in Cal. Lab. Code § 1102.5, a ‘whistleblower’ statute, and in

Cal. Lab. Code § 6310(b), which prohibits the discharge of

employees who make safety related complaints.”). As the

court explained, however, that interest did not require

vindication under state law because the plaintiff “could have

brought to the NLRB the specific claim asserted in this

lawsuit—that he was fired for making job safety complaints.”

959 F.2d at 95. The Platt court also emphasized that, in a

wrongful-discharge case, “both the retaliatory misconduct

10

alleged and the remedy sought are directly relevant to the

Board’s central function, unlike the cases in which a local

interest exception has been recognized.” Jd. Precisely the

same is true here: the alleged wrongful discharge of unionized

workers for being, or supporting, whistleblowers on workplace-

safety issues falls squarely within the Board’s central function,

and respondents could have challenged their discharge by filing

an unfair labor practice claim before the Board. What they

cannot do is to circumvent the Board’s exclusive jurisdiction

over such conduct by simply asserting that their claims involve

“local interests.” -

Platt’s interpretation of the scope of Garmon preemption, .

however, is not universal. In J/nter-Modal Rail Employees

Ass’n v. Burlington N. & Santa Fe Ry. Co., 73 Cal. App. 4th

918 (1999)}—a case on which the court below expressly relied,

see App. 1 la-12a—the California Court of Appeal “ch[ose] not

to follow Platt,” and held (like the court below) that a state-law

claim of wrongful dischzrge in violation of state public policy

survived Garmon preemption under the “local interest”

exception. Jd. at 924-28. In Jnter-Modal (as here and in Platt),

the plaintiff contended that unionized workers had been

wrongfully discharged in retaliation for complaining about

workplace safety. According to the /nter-Modal court, “the

employer’s alleged conduct in terminating the plaintiff for . . .

refusing to endanger the health and safety of California

workers, is clearly conduct which touches interests deeply

rooted in local feeling and responsibility.” Id. at 925 (internal

quotation and brackets omitted; emphasis in original). The

court specifically rejected Platt’s conclusion that a wrongful

discharge claim by an alleged workplace-safety whistleblower

is preempted because “the controversy presented to the state

court is identical to . . . that which could have been...

presented to the Labor Board.” Jd. at 927 (internal quotation

omitted).

1]

The Ninth Circuit has gone even further than the California

Court of Appeal, holding that Garmon preemption analysis is

simply “not relevant” to a state-law wrongful-discharge claim.

See Paige v. Henry J. Kaiser Co., 826 F.2d 857, 862 (9th Cir.

1987). In Paige (as here, Platt, and Inter-Modal) the plaintiffs

were unionized workers who alleged that they had been

wrongfully discharged in retaliation for complaining about

workplace safety. The Ninth Circuit rejected a Garmon

preemption defense based on the truism that the plaintiffs’

ostensible state-law claim did not arise under the NLRA. See

id. The court asserted that the plaintiffs, “as masters of their

complaint, did not aliege a violation of their rights under the

NLRA, but only Violations of state statutes and policy. By

foregoing their claim based on federal law, the [plaintiffs] may

choose to plead their action as a state claim,” and thus avoid

Garmon preemption. Jd.

The Ninth Circuit’s Paige analysis makes no sense: the

whole point of the Garmon doctrine is to determine when

ostensible state-law claims are preempted by the NLRA. If the

fact that a claim is framed under state law were enough to

survive Garmon preemption, the doctrine would be a dead

letter. What matters is the conduct challenged by the claim, not

the abel placed on the claim. See, e.g., Gould, 475 U.S. at 289

(““It is the conduct being regulated, not the formal description

of governing legal standards, that is the proper focus of

concern.’”) (emphasis added; quoting Lockridge, 403 U.S. at

292); Gould, 475 U.S. at 287 (“‘[J]udicial concern has

necessarily focused on the nature of the activities which the

States have sought to regulate, rather than on the method of

regulation adopted.””) (emphasis added; quoting Garmon, 359

U.S. at 243). Not surprisingly, thus, the Platt court expressly

rejected the Paige court’s holding on this score. See 959 F.2d

at 95 n.7 (“[T]o the extent Paige holds that plaintiffs may avoid

Garmon preemption simply by choosing ‘to plead their action

12

as a State claim,’””—-which it manifestly does—“we disagree.”’)

(quoting Paige, 826 F.2d at 862).

The decision below, Jnter-Modal, and Paige all reflect an

unduly narrow scope of Garmon preemption. Respondents’

ostensible state-law wrongful-discharge claim is nothing more

than an “artfully pleaded” unfair labor practice charge. If the

“local interest” exception were sufficient to save such a claim

from preemption, then the exception would swallow the rule:

every state-law claim can be said to involve matters of “local

interest,” because state-law claims by definition implicate some

state policy or interest. It is telling that the four cases cited by

Garmon in support of the “local interest” exception, see 359

U.S. at 244 n.2 (citing International Union, UAW v. Russell,

356 U.S. 634 (1958); Youngdahl v. Rainfair, Inc., 355 U.S. 131

(1957); UAW v. Wisconsin Employment Relations Bd., 351

U.S. 266 (1956), and United Constr. Workers v. Laburnum

Constr. Corp., 347 U.S. 656 (1954)), as well as this Court’s

subsequent cases applying that exception, see Sears, Roebuck

& Co. v. San Diego Cty. Dist. Council of Carpenters, 436 U.S.

180, 195 (1978); Farmer v. United Bhd. of Carpenters &

Joiners, 430 U.S. 290 (1977); Linn v. United Plant Guard

Workers, 383 U.S. 53 (1966), all involve state laws of general

applicability. Although the narrow “local interest” exception

may allow States to apply some general laws in the

employment context, see e.g., Sears, 436 U.S. at 195 (trespass);

Farmer, 430 U.S. at 296-97, 299-300 (intentional infliction of

emotional distress); Linn, 383 U.S. at 61-62 (libel); Russell,

356 U.S. at 640 (violence); Youngdahl, 355 U.S. at 138

(violence); Wisconsin, 351 U.S. at 272-75 (violence);

Laburnum, 347 U.S. at 665-66 (threats of violence), it does not

allow States to apply laws (like a wrongful-discharge claim)

directed specifically and exclusively at that context. The court

below thus erred by invoking Washington’s alleged

“substantial interest in regulating discriminatory employment

practices,” App. lla, to avoid Garmon preemption. “[I]t is

13

essential that the state tort be either unrelated to employment

discrimination or a function of the particularly abusive manner

in which the discrimination is accomplished or threatened

rather than a function of the actual or threatened discrimination

itself.” Farmer, 430 US. at 300, 305 (emphasis added).

Indeed, the Washington court’s invocation of the “local

interest” exception here is particularly outlandish, as

respondents are challenging their discharge from a federal

nuclear facility where the State’s occupational health and

safety laws do not even apply. See, e.g., Department of Labor

& Indus. v. Dirt & Aggregate, Inc., 837 P.2d 1018, 1023

(Wash. 1992). “[A]s the cases make clear, the Court has not

extended [the “local interest”] exception beyond a limited

number of state interests that are at the core of the States’

duties and traditional concerns.” New York Tel. Co. v. New

York Dep't of Labor, 440 U.S. 519, 550-51 (1979) (opinion

concurring in the judgment) (citing cases; emphasis added). It

goes without saying that a State cannot claim a compelling

interest in protecting alleged whistleblowers on workplace-

safety issues in a federal enclave where the State’s own

workplace-safety laws do not even apply.

Because respondents’ ostensible state-law wrongful-

discharge claim is preempted by Garmon, they are not entitled

to pursue such a claim, and their only remedy for the

challenged conduct is to file an unfair labor practice charge

with the NLRB. The Washington Court of Appeals thus erred

by allowing them to proceed with their claim, and thereby

exacerbated an existing conflict of authority over the scope of

Garmon preemption in this context.

14

Il. THE COURT BELOW ERRED BY APPLYING A

PRESUMPTION AGAINST ENFORCEMENT OF

ARBITRATION CLAUSES CONTAINED IN

COLLECTIVE BARGAINING AGREEMENTS.

Even if respondents had a state-law claim that survived

Garmon preemption, the Washington Court of Appeals further

erred by holding that respondents were entitled to pursue that

claim in court, rather than in arbitration pursuant to the

“exclusive grievance procedure” set forth in their collective

bargaining agreement. The court did not deny that the

arbitration agreement, if construed in light of the traditional

_presumption in favor of arbitration under the Federal

Arbitration Act (FAA), 9 U.S.C. § 1 ef seg., would require

arbitration of respondents’ claims. Instead, the court applied

a presumption against arbitration in this context, holding that

“an arbitration clause in a CBA will not waive an employee’s

right to a judicial forum unless such a waiver is clear and

unmistakable.” App. 6a (emphasis added).

The Washington court thereby turned the law on its head.

It is axiomatic that the FAA creates a strong presumption in

favor of, not against, arbitration. See, e.g., Mastrobuono v.

Shearson Lehman Hutton, Inc., 514 U.S. 52, 62 (1995);

Rodriguez de Quijas v. Shearson/American Express, Inc., 490

U.S. 477, 480-81 (1989); Shearson/American Express Inc. v.

McMahon, 482 U.S. 220, 226 (1987); Perry v. Thomas, 482

U.S. 483, 489 (1987); Mitsubishi Motors Corp. v. Soler

Chrysler-Plymouth, Inc., 473 U.S. 614, 625-26 (1985); Moses

H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24

(1983). And there is no question now that arbitration clauses

contained in CBAs, except to the limited extent those

agreements cover transportation workers, are governed by the

FAA. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105,

114-19 (2001).

15

The court below purported to base its application of the

FAA on this Court’s decision in Wright v. Universal Maritime

Service Corp., 525 U.S. 70 (1998), but that reliance was

misplaced. Wright did not involve the FAA at all; to the

contrary, the Court expressly declined to consider the

applicability of the FAA because neither the parties nor the

lower court had addressed that issue. See id at 77 n.l.

Contrary to the Washington court’s assertion, Wright held only

that the presumption in favor of arbitration under the Labor

Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185,

does not apply to workers’ federal statutory claims, because

that presumption is based on the principle “that arbitrators are

in a better position than courts fo interpret the terms of a CBA.”

525 U.S. at 78 (emphasis in original). Because federal

statutory claims do not involve the interpretation of a CBA, the

Court held, the LMRA’s presumption of arbitration does not

apply in this context. See id. That reasoning, however, has no

application to the FAA, which imposes a presumption in favor

of enforcement of arbitration agreements whatever their subject

matter, and which trumps any contrary state law or policy. Cf

Coca-Cola Bottling Co. v. Soft Drink & Brewery Workers

Union Local 812, 242 F.3d 52, 54 (2d Cir. 2001) (noting that

the LMRA is “analytically distinct from the FAA”). Needless

to say, Wright cannot be deemed conclusive authority on the

enforceability of arbitration clauses in CBAs in cases (like this

one) governed by the FAA—an issue that Wright expressly

declined to address.

Indeed, the lower courts are in open disarray on the very

issue presented here: whether, and under what circumstances,

an arbitration clause-in a CBA can be deemed to waive an

employee’s right to a judicial forum for individual

employment-related claims. That confusion stems primarily

from the interplay between two of this Court’s decisions:

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) and

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991).

16 -

Gardner-Denver reflects an outmoded judicial antipathy

toward arbitration (characterizing it as inferior to the judicial

process for resolving statutory claims, see 415 U.S. at 57-58),

and states that a union cannot bind its members to arbitration

of their individual claims in a CBA, see id. at 51 (“[T]here can

be no prospective waiver of an employee’s [statutory] rights,”

including the right to a judicial forum, ina CBA). Gilmer, in

contrast, reflects the “current strong endorsement” of

arbitration even of individual employment-related claims, and

specifically disavows Gardner-Denver’s antipathy toward

arbitration. 500 U.S. at 30 (internal quotation omitted), 34 n.5.

Because the arbitration clause in Gilmer was not contained in

a CBA, however, that case did not specifically address the

ongoing vitality of Gardner-Denver in that context. See id. at

35.

The question thus remains (as this Court noted, but

expressly declined to answer, in Wright) “whether or not

Gardner-Denver’s seemingly absolute prohibition of union

waiver of employees’ federal forum rights survives Gilmer.”

525 U.S. at 80. The lower courts are clearly and expressly

divided on this question. The Fourth Circuit has held that

Gilmer effectively overruled Gardner-Denver, and that

arbitration clauses in CBAs presumptively waive employees’

right to a judicial forum just like arbitration clauses in other

binding employment-related agreements. See Austin v. Owens-

Brockway Glass Container, Inc., 78 F.3d 875, 885 (4th Cir.

1996) (“Whether the dispute arises under a contract of

employment growing out of a securities registration

application, a simple employment contract, or a collective

bargaining agreement, an agreement has yet been made to

arbitrate the dispute.”) (emphasis added). Eight other federal

courts of appeals disagree, and hold that even after Gilmer, an

arbitration clause in a collective bargaining agreement is either

per se unenforceable, or (as the court below held) subject to a

presumption against arbitration of individual employee claims.

17

See Rogers v. NYU, 220 F.3d 73, 75-77 (2d Cir. 2000) (per

curiam); Air Line Pilots Ass’n, Int'l v. Northwest Airlines, Inc.,

199 F.3d 477, 481-86 (D.C. Cir.), vacated, 199 F.3d 487 (D.C.

Cir. 1999) (en banc), reinstated, 211 F.3d 1312 (D.C. Cir.

2000) (en banc); Albertson’s, Inc. v. United Food &

Commercial Workers Union, 157 F.3d 758, 761-62 (9th Cir.

1998); Penny v. UPS, 128 F.3d 408, 413-14 (6th Cir. 1997);

Brisentine v. Stone & Webster Eng’g Corp., 117 F.3d 519, 526-

27 (11th Cir. 1997); Harrison v. Eddy Potash, Inc., 112 F.3d

1437, 1453-54 (10th Cir. 1997), vacated on other grounds, 524

U.S. 947 (1998); Pryner v. Tractor Supply Co., 109 F.3d 354,

360-65 (7th Cir. 1997); Varner v. National Super Markets, Inc.,

94 F.3d 1209, 1213 (8th Cir. 1996); see also Torrez v.

Consolidated Freightways Corp., 58 Cal. App. 4th 1247, 1249-

60 (1997). These decisions “disagree with the result and

reasoning of the Fourth Circuit” in Austin, Brisentine, 117 F.3d

at 526, and acknowledge the clear “circuit split” on this issue,

Pryner, 109 F.3d at 363; see also Rogers, 220 F.3d at 75 & n.1;

Air Line Pilots, 199 F.3d at 484; Albertson’s, 157 F.3d at 761-

62; Penny, 128 F.3d at 413; Harrison, 112 F.3d at 1453;

Torrez, 58 Cal. App. 4th at 1249-50 & n.1, 1257-59; cf Hunter

v. Earthgrains Co. Bakery, 281 F.3d 144, 154 (4th Cir. 2002).

The court below exacerbated this circuit split by applying

a presumption against arbitration of respondents’ ostensible

State-law claim here, even though respondents (as union

members) are unquestionably bound by a CBA (negotiated by

their union representatives) with an arbitration clause. That

presumption is impossible to square with the FAA, which

commands precisely the opposite presumption. And there is no

reason to apply a presumption against arbitration but for

Gardner-Denver’s outmoded antipathy toward arbitration.

Under the Fourth Circuit’s analysis in Austin, which

recognized that unions have the power to waive individual

employee rights in CBAs and did not employ any presumption

18

against such waiver, respondents’ claims are plainly subject to

arbitration.

Indeed, even those decisions that disagree with Austin do

not necessarily endorse the notion that arbitration clauses in

CBAs should be construed differently than such clauses in all

other agreements. Rather, a number of those decisions simply

hold that they are constrained by Gardner-Denver, and

emphasize that it is up to this Court, not a lower court, to

repudiate that decision. See Air Line Pilots, 199 F.3d at 484

(“We ... leave to the Court itself the prerogative of overruling

its own precedent (if it will); we apply the law as it stands.”)

(citing Rodriguez, 490 U.S. at 484); Brisentine, 117 F.3d at 525

(“It may be that the Supreme Court has cut [Gardner-Denver]

back so far that it will not survive. Perhaps, but we are not

convinced we are authorized to sing the dirge of [Gardner-

Denver]. We will leave that to the Supreme Court.”) (also

citing Rodriguez, 490 U.S. at 484). That is hardly a ringing

endorsement of Gardner-Denver over Gilmer; to the contrary,

it is an invitation for this Court to clarify the “obviou[s] . . .

tension” between those two precedents. Wright, 525 US. at

76; see also Air Line Pilots, 199 F.3d at 483.

CONCLUSION

For the foregoing reasons, this Court should grant the

petition for writ of certiorari.

Respectfully submitted,

WILLIAM R. SQUIRES III CHRISTOPHER LANDAU

SUMMIT LAW GROUP Counsel of Record

1505 Westlake Ave. N., KIRKLAND & ELLIS

Suite 300 655 Fifteenth St., N.W.

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