Opposition Brief — Fluor Hanford, Inc. v. Brundridge

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No. 02-896 FEB 3 2003

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Jn The

Supreme Court of the Anited States

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FLUOR HANFORD, INC., AND

FLUOR FEDERAL SERVICES, INC.,

Petitioners,

V.

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

¢

BRIEF IN OPPOSITION

+

RANDY BAKER

JOHN P. SHERIDAN

Counsel of Record

SHERIDAN & BAKER

Hoge Building, Suite 1200

705 Second Ave.

Seattle, WA 98104

(206) 381-5949

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Do wrongful discharge actions for violation of state

health and safety laws fall within the “local interests”

exception to preemption under the National Labor Rela-

tions Act?

Does the Federal Arbitration Act compel arbitration of

employee claims based on rights arising outside of a

collective bargaining agreement if the CBA includes no

express reference to such rights and if it mandates arbi-

tration of “any disputes that arise out of the interpretation

or application of this agreement”?

ii

LIST OF PARTIES

Petitioner is Fluor Federal Services, Inc.

Respondents include Scott Brundridge, Donald

Hodgin, Jessie Jaymes, Pedro Nicacio, Shane O’Leary,

Raymond Richardson, James Stull, Randall Walli, David

Faubion, and Charles Cable and are all represented by

Sheridan and Baker. Clyde Killen, who is also a respon-

dent, is not represented by Sheridan and Baker.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.......0......0.cccccccccccccseeeeeeee i

I sb sasinbiies van snbehesannsesatnsevavevexrondoosns li

TABLE OF AUTHORITIES ............cccccccssssssssccscccseess iv

STATEMENT OF THE CASE...............cccccsccssesessseees 1

REASONS FOR DENYING THE WRIT..................... 12

I. WRONGFUL DISCHARGE CLAIMS FOR

VIOLATION OF STATE HEALTH AND

SAFETY LAWS FALL SQUARELY WITHIN

THE “LOCAL INTERESTS” EXCEPTION

TO NLRA PREEMPTION ..............0cccccccccceeees 12

II. THE RIGHT TO LITIGATE VIOLATIONS

OF INDIVIDUAL RIGHTS IN COURT MAY

NOT BE WAIVED THROUGH A CBA,

WHICH DOES NOT INCLUDE A CLEAR

AND UNMISTAKABLE WAIVER OF THAT

iv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

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

TE dcx iisesnsicichaesienoiidedciinsdnaibibiaasiiouddaabanatiaautdideiicciemnlaes 10

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

Fs Se ET itccicinsdcnneheseciclaaiialiindiiblasinidiciibisadiiabaninamaoen 7, 9, 20

Local 926, IUOE v. Jones, 460 U.S. 669 (1983)................. 16

Metropolitan Edison Co. v. NLRB, 460 U.S. 693

Cee itissinbiestetnsisiseitiesnssinianaichscigusiaiandialadilatdhdied tciediadiniaahatt 14, 18, 19

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

1987), cert. denied, 486 U.S. 1054 (1988).......... 14, 15, 16

Parker v. Connors Steel Co., 855 F.2d 1510 (11th

Cir. 1988), cert. denied, 490 U.S. 1066 (1989)............... 16

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

So Fae iivininctiadnistsieiiciiiniinceninaninestaatienbancbididiibnaaiehand 15, 16, 17

Rogers v. New York Univ., 220 F.3d 73 (2nd Cir.

2000), cert. denied, 531 U.S. 1036 (2000)............0000.000.. 19

San Diego Building Trades Council v. Garmon, 359

Ss SAD scintvwitanshtnunsabhddsensnbeancnasinelaniuaninads 13, 15, 17

Wright v. Universal Maritime Serv. Corp., 525 U.S.

FE ital cievastcininadstandbobisidarsesnmas 17, 18, 19, 20

STATE CASES

Inter-Modal Rail Employees Ass’n v. Burlington

Northern and Santa Fe Ry. Co., 73 Cal. App. 4th

ee SED cnnsincicdiiaiegiidiiincnnadcetididaloemaliemauninees 13, 15, 16, 17

Roberts v. Dudley, 140 Wn.2d 58 (2000)................cseeeeeeeees 13

TABLE OF AUTHORITIES -— Continued

Page

STATUTES

SP AI RGA: G ie Fe svsssntestcctenserinndacaeinmssannndauainaih 7,10, 11

Energy Reorganization Act, 42 U.S.C. § 5851.00.00... 5

Labor Management Relations Act, § 301, 1947, 61

eal. TG; I ETE. © WG vacinccssstiniiesiveneestinibieediacenaantoan 7

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

1

STATEMENT OF THE CASE

In May 1997, five of the respondents herein, pipefit-

ters Clyde Killen, Pedro Nicacio, Shane O’Leary, James

Stull, and Foreperson Randall Walli, in addition to two

other pipefitters, Daniel Phillips and Terry Holbrook, were

employees of petitioner working on a crew at Hanford’s

200-West area assigned to the W-058 project. These five

pipefitters were told by petitioner’s management to install

and use underrated valves in a pipe that was being pres-

sure tested with thousands of gallons of water, and in close

proximity to hazardous waste storage tanks. CP 345-348.

The valves were underrated, because they were not

rated to withstand the pressure to which they would be

subjected, if management’s order had been implemented.

CP 345-348. The five pipefitters were concerned that use

of the valves would result in their failure, which could

result in the injury or death of workers who would be

stationed near the valves, as had happened previously

under similar circumstances at petitioner’s facility. CP

499.

After discussions between the pipefitters and peti-

tioner’s management, it was agreed that the valves would -

be installed and tested on the condition that no employees

were within 100 feet of the valves during the test. Managers

then changed their position and insisted that the pipefitters

stand near the valves during the test. The five pipefitters

refused to use the valves during the test. CP 345-348.

Petitioner’s Manager Miller then arrived at the site

and yelled profanities at the five pipefitters for refusing to

use the underrated valves. Following discussions between

the pipefitters and Miller about the underrated valves,

petitioner’s agents located properly rated valves that were

2

on-site. The five pipefitters then installed the valves and

conducted the pressure test. CP 345-348.

Several days later, without explanation, Foreperson

Walli was demoted — which caused him to resign — and

most of the crew was laid off. CP 348. Manager Miller told

General Foreperson Nichols that he had manipulated the

personnel work schedules in order to dismiss Pipefitter

Walli and others in Walli’s crew, because he was “tired of

all the safety issues being raised.” CP 500. Referring to the

layoffs, Miller bragged to another manager that he got rid

of his problems all at once. CP 680-1.

The pipefitters were represented by Local No. 598 of

the United Association of Journeymen and Apprentices of

the Plumbing and Pipe Fitting Industry of the United

States and Canada, and worked for petitioner under a

collective bargaining agreement, the Hanford Site Stabili-

zation Agreement (the CBA). CP 157-210.

On June 20, 1997, Union Local 598 filed a grievance

with petitioner in response to the layoffs. CP 152-210, 582.

The petitioner maintained at the time of filing that “no

grievable action ha[d] taken place.” CP 582. The union

could not adequately investigate the layoffs, since it lacked

discovery tools such as subpoena power. In addition, under

the CBA, retaliatory layoff is much harder to prove than

wrongful termination. CP 855-6. That is because the CBA

does not require management to state a reason for a layoff;

the CBA does require the employer to state a reason for a

termination.

On February 8, 1998, the union withdrew the griev-

ance, because it lacked the “ability to provide direct

evidence of a violation of the Hanford Site Stabilization

3

Agreement.” CP 1454. No further grievances were filed by

the Union for subsequent layoffs of the respondents.

On August 4, 1997, pipefitters Randall Walli, Clyde

Killen, Pedro Nicacio, Shane O’Leary, James Stull, Daniel

Phillips, and Terry Holbrook filed a complaint with the

U.S. Department of Labor under 42 U.S.C. § 5851, the

employee protection provisions of the Energy Reorganiza-

tion Act (Act), alleging that Fluor had retaliated against

them for engaging in protected whistleblowing activity. CP

652. An investigation by the Department of Labor (DOL)

ensued. Fluor claimed that the safety issues raised were

not within the ambit of the ERA on the grounds that the

DOL lacked jurisdiction to investigate. CP 667. The DOL

disagreed and found that Fluor had retaliated against the

pipefitters in violation of the Act and recommended imme-

diate reinstatement, back pay, compensatory damages,

and attorney fees. CP 658-672, 677.

Fluor appealed the DOL findings and an administra-

tive hearing was scheduled pursuant to the Act. Just prior

to the hearing, petitioner settled with the respondents. CP

1455-56, Resp. Appendix at 14a-l5a. Pursuant to the

settlement, Fluor agreed to reinstate the pipefitters [“refus-

ing pipefitters”] and to pay compensation covering back pay,

compensatory damages and attorney fees. CP 1455-1456.

The facts pertaining to the June 1997 layoffs that led

to the DOL Fluor settlement do not form the basis for the

wrongful discharge claims at issue here. CP 247-255.

However, they are the origin of the retaliation that fol-

lowed reinstatement, which does form the basis for the

respondents’ individual wrongful discharge claims.

At the end of February 1998, after the settlement

agreement was signed, Fluor managers held a meeting

4

with the pipefitter forepersons and represented that the

DOL settlement expressly required that seven current

pipefitters be laid off and that the seven pipefitters whom

the DOL found to have suffered retaliation be reinstated.

CP 778. The representation was false.

Relying on this misrepresentation — which indicated

that the refusing pipefitters had secured their own jobs

and settlement benefits at the expense of the jobs of their

union brothers — twelve forepersons and the general

foreperson drafted and signed a petition to protest the

forced reinstatement of the seven pipefitters they under-

stood to be required by the settlement. CP 896, Resp.

Appendix at 17a. The petition, dated March 4, 1998, listed

seven pipefitters selected for layoff. CP 896, Resp. Appen-

dix at 17a.

Four of the pipefitters listed were the pipefitter

respondents who had individually supported the refusing

pipefitters. Three or four days after the layoffs of those

pipefitters, respondent Pipefitter Scott Brundridge began

to voice his opinion in the lunch trailer that all of the

remaining pipefitters should stand up for safety in support

of their Union brothers. CP 685-686. Respondent Pipefit-

ters Donald Hodgin and Scott Brundridge also voiced their

support of the refusing pipefitters in the lunch trailer, in

the presence of the other workers and forepersons. CP 698-

699. Pipefitter Ray Richardson called the Department of

Energy hotline to express his safety concerns about the

valves and his disapproval of the layoffs of the refusing

pipefitters. CP 698-699, 736. Respondent pipefitter Jessie

Jaymes expressed support for the refusing pipefitters

and was named as a witness for the complainants in

preparation for the Department of Labor hearing. CP 759,

764-766. These seven pipefitters, including respondents

5

Brundridge, Hodgin, Jaymes and Richardson, were laid off

effective March 10, 1998. CP 1014, 1023.

On April 6, 1998, these four newly laid off pipefitters

filed a complaint with the DOL alleging that they had

been unlawfully retaliated against under 42 U.S.C. § 5851

for engaging in the protected activity of supporting the

refusing pipefitters. CP 1014-1027. In this matter, DOL

issued its investigative finding, which held that

Brundridge, Hodgin, Jaymes, and Richardson all engaged

in protected whistleblowing activity under the Energy

Reorganization Act for their various actions expressing

vocal support of the refusing pipefitters. CP 1023-1024.

The finding, however, credited Fluor’s contention that the

layoffs were not motivated by the protected activity, but

were ordered because Fluor needed to make room for the

reinstatement of the refusing pipefitters and that there

was not enough work to support seven additional workers.

CP 1025-1026.’

’ The DOL investigation was limited in scope and failed to uncover

critical evidence that was obtained in discovery in this litigation. For

example, Ivan Sampson, one of petitioner’s managers, testified at a

deposition, under subpoena, that in early March 1998 he had overheard

a telephone conversation between General Foreperson Nichols and

Manager Holladay about pending layoffs. Corroborated by contempora-

neous personal journal entries, Sampson testified that he heard Nichols

tell Holladay on the phone that he felt he had a place for a couple of the

fitters [meaning that there was no need to lay off seven]. CP 589-599,

903. Sampson testified that Holladay was so loud through the phone

that he could hear him from across the room through the receiver yell,

“I don’t care, we're laying off seven for seven.” CP 589-599, 903.

Holladay then yelled, “Is Ivan there? You tell that son of a bitch that Pl

rip his balls off if he tells anybody about this.” CP 589-599, 903.

Pursuant to Holladay’s orders, seven pipefitters were laid off for the

returning pipefitters.

6

Pipefitters Brundridge, Hodgin, Jaymes and Richard-

son appealed the DOL investigative finding and requested

a hearing on the merits before an Administrative Law

Judge. CP 1039.

The refusing pipefitters returned to the work site on

or about March 10, 1998, pursuant to the settlement. CP

1041, 1045. They were split up and assigned to different

crews. Rumors in the workplace indicated that manage-

ment intended to lay off the returning pipefitters within

six months of their return to work. CP 485. Pipefitters

Walli, Killen, Nicacio, and Stull were laid off on October 2,

1998, and Pipefitter O’Leary was laid off on November 25,

1998; Fluor stated each of these layoffs resulted from “lack

of work.” CP 1043.

Pipefitters Walli, Killen, Nicacio, Stull, and O’Leary

filed another complaint with the DOL, alleging that

Petitioner Fluor again had retaliated against them in

violation of the whistleblower protection provisions of the

Energy Reorganization Act. CP 1031-1034.

In August 1999, Pipefitters Walli, Killen, Nicacio,

Stull, O’Leary, Brundridge, Hodgin, Jaymes and Richard-

son elected to pursue claims for wrongful discharge in

violation of public policy and civil conspiracy in Washing-

ton State Court, and dismissed their administrative

claims, because of the limitations of the DOL forum and to

prevent collateral estoppel from precluding their state

court claims. CP 771-774.

Respondent David Faubion, a pipefitter at Hanford for

over twenty-three years, joined the lawsuit because he was

laid off ten days after being told by Fluor management not

to talk with any of the pipefitters who were reinstated

pursuant to the DOL settlement. CP 500-501. Faubion had

7

chosen to carpool with Randall Walli, who was one of the

reinstated pipefitters. CP 500-501. Faubion’s position was

instantly filled by another worker. CP 501, 933, 957.

On August 18, 1999, petitioner filed a Notice of Re-

moval of Civil Action to U.S. District Court. Petitioner

argued that respondents’ wrongful discharge and civil

conspiracy claims were preempted by the Labor Manage-

ment Relations Act, § 301, 1947 (LMRA), 61 Stat. 156, 29

U.S.C. § 185, because their employment was governed by a

collective bargaining agreement. CP 1258-1261. Petitioner

also claimed federal question jurisdiction on the grounds

that strong federal and national security interests were

implicated, because the events and the parties involved in

the suit related to the Hanford facility. CP 1246-1247.

Petitioner did not allege preemption under 29 U.S.C.

§§ 157, 158.

Respondents filed a Motion for Remand to state court.

Respondents argued that interpretation of the terms of the

CBA was not required to resolve the independent state law

claims of wrongful discharge and civil conspiracy and

therefore that Section 301 did not preempt their claims.

CP 1238; also see Lingle v. Norge Division of Magic Chef,

Inc., 486 U.S. 399, 413 (1988). Respondents also argued

that national security was not implicated by their claims.

CP 1244-7.

The parties submitted documentary evidence for

consideration by the court including: attorney and witness

declarations, the Hanford Site Stabilization Agreement,

Justification for Use of PL 85-804, the 6/9/97 Text of

Presidential Memo, excerpts of the deposition transcripts

of Henry Tonning, Roger Tool, Ivan Sampson, Jeff Stair,

James Hanna, and Fred Rutt, the Pipefitter Settlement

8

Agreement, Defendant’s responses to Plaintiffs’ First

Interrogatories, and the July 3, 1996 Management Ex-

cerpts. See Respondent’s Motion for Judicial Notice filed in

Court of Appeals.”

The CBA contains a grievance procedure, culminating

in arbitration, for resolving disputes that “arise out of the

interpretation or application of this AGREEMENT.” CP

171, Resp. Appendix at 19a. The CBA further provides

that:

No such grievance shall be recognized unless

called to the attention of the EMPLOYER by the

UNION or to the attention of the UNION by the

EMPLOYER in writing or postmarked with ten

(10) working days after the alleged violation was

committed. ... Failure to process a grievance, or

failure to respond in writing, within the time

limits provided above ... shall be deemed a

waiver of such grievance. ...”

CP 170.

The CBA also states that “no employee will be re-

quired to perform any work in an unsafe manner or unsafe

condition” CP 170, Resp. Appendix at 18a and that:

it will not be a violation of this AGREEMENT

when the EMPLOYER considers it is necessary

to shut down to avoid possible loss of human life

because of an emergency situation that could en-

danger the life and safety of an employee....

* The motion for judicial notice was granted by the Court of

Appeals. Pet. App. at 4a n. 3.

9

Employees shall not be discharged for refusing to

work in the above-described situations.

CP 170 (Emphasis added).

On December 20, 1999, Judge Shea of the U.S. Dis-

trict Court for the Eastern District of Washington granted

Respondents’ Motion for Remand to the Superior Court of

Washington for Benton County. CP 1248, Resp. Appendix

at 13a.

Following Lingle, the court held that plaintiffs’ state

wrongful discharge claims were not preempted under

section 301, because their adjudication did not require

interpretation of the CBA. CP 1238-1248, Resp. Appendix

at 3a-13a. The court found that reference in the complaint

to the CBA was to show petitioner’s failure to base plain-

tiffs’ layoffs on the legitimate reasons articulated in the

CBA -— skill, productivity, and qualifications — and thereby

to prove that defendant’s motive in discharging plaintiffs

was retaliatory. CP 1242-1243. The court explained that

“[p]laintiffs rely on the factual history preceding their

discharge as direct and circumstantial evidence that

retaliation was the reason [for the layoffs].” CP 1243,

Resp. Appendix at 7a-8a.

The court found that the petitioner’s contention that

federal jurisdiction was mandated by strong federal and

national security interests was unsubstantiated, and that

the argument turned on inapposite authorities concerning

disputes between government contractors and _ sub-

contractors. CP 1242-1243.

In March, 2000 respondent Pipefitter Charles Cable

testified under subpoena in a deposition that he had been

told by petitioner’s supervisors approximately six months

10

earlier that Daniel Phillips and Terry Holbrook, two of the

refusing pipefitters, had been placed on the layoff list but

could not be laid off until litigation was over. CP 247-255,

1104, 1109-1119. On May 2, 2000, Cable, a pipefitter at

Hanford since August 1993, was laid off. CP 1116-1117.

Cable then joined this lawsuit.

On August 10, 2000, one month prior to trial, defen-

dant moved for summary judgment. CP 1539-1563. No

federal issue was raised in the motion.

On September 20, 2000, Superior Court Judge Caro-

lyn Brown granted defendant's motion for summary

judgment as to plaintiffs’ civil conspiracy claims, but

denied the motion as to plaintiffs’ claims for wrongful

discharge in violation of public policy.* CP 1319.

On April 12, 2001, petitioner filed a Motion to Dismiss

Or, In The Alternative, To Stay This Action based on the

Federal Arbitration Act (FAA). CP 227-244. Petitioner did

not allege preemption under 29 U.S.C. §§ 157, 158.

On May 3, 2001, Judge Brown granted defendant’s

Motion, finding that this Court’s decision in Circuit City

Stores, Inc. v. Adams, 532 U.S. 105 (2001) dictated that

plaintiffs’ wrongful discharge claims proceed to arbitration

under the FAA. RP 17. Upon request by plaintiffs, Judge

Brown stayed the order to allow for appeal of her ruling.

RP 18.

* The trial court’s dismissal of plaintiffs’ civil conspiracy claims was

not a subject of the appeal.

11

On appeal to the Washington Court of Appeals, in its

responsive brief, petitioner raised for the first time a

preemption claim under 29 U.S.C. §§ 157, 158. On Decem-

ber 4, 2001, the Court of Appeals reversed the decision of

the trial court, holding that respondents’ claims are

neither preempted by the NLRA nor are they subject to

mandatory arbitration under the FAA.

Respondent petitioned for review in Washington’s

Supreme Court and the petition was denied on August 7,

2002. Pet. at 14a-15a. On August 13, 2002, a mandate

issued returning the case to the Washington Superior

Court for trial. Resp. Appendix at la-2a. Petitioner filed its

petition for writ of certiorari on December 4, 2002.

Respondents also note the following additional

misstatements and omissions in the Petition for Writ of

Certiorari. Fluor Hanford, Inc., appears as a petitioner on

the case caption, but it is not a party to this action. Pet. at

4. Fluor Hanford, Inc. was dismissed as a party at sum-

mary judgment. See Pet. Appendix at 4a, n. 4. Fluor

Federal Services, Inc. (Fluor), formerly Fluor Daniel

Northwest, Inc., was the sole employer of the respondents

and is the subject of the wrongful discharge claims in issue

in this case.

Citing the Opinion of the Washington Court of Ap-

peals in this case, petitioner asserts that the CBA between

petitioner and respondents’ union “included (1) a guaran-

tee that workers would not be laid off for refusing to work

in unsafe conditions ... App. 3a.” Pet. at 4. (Emphasis

added). The CBA contained no such guarantee and the

Court of Appeals’ opinion does not state the CBA does

contain such a guarantee. The CBA, as noted above,

prohibits “discharge” for such refusal. Petitioner has

12

represented its actions towards respondents as “layoffs.”

CP 659, 1299-1306.

Throughout this litigation, petitioner has denied the

existence of unsafe conditions associated with the inci-

dents preceding the “layoffs.” CP 659, 1299-1306. Peti-

tioner also has denied throughout this litigation that there

was any connection between its layoffs of several of the

respondents and their above-mentioned refusal to use an

underrated valve. CP 659, 1299-1306.

Petitioner’s assertion that it “implemented a series of

reductions in force that eliminated the jobs of 81 pipefit-

ters, including all eleven respondents” is false. See Pet. at

4. Petitioner Fluor disregarded its own criteria for select-

ing pipefitters for layoff — including work performance,

length of service, dependability, certifications and training

— in terminating respondents. Instead, respondents were

selected for termination at the direction of Fluor manage-

ment with the support of the general foreperson and

forepersons. CP 573-580; Resp. Appendix at 17a.

&

v

REASONS FOR DENYING THE WRIT

I. WRONGFUL DISCHARGE CLAIMS FOR VIO-

LATION OF STATE HEALTH AND SAFETY

LAWS FALL SQUARELY WITHIN THE “LOCAL

INTERESTS” EXCEPTION TO NLRA PRE-

EMPTION

Respondents have each asserted separate state law

claims of wrongful discharge in violation of public policy.

Each respondent must prove the following elements to

prevail: (1) the existence of a clear public policy; (2) that

discouraging the conduct in which they engaged would

TE

13

jeopardize the public policy; (3) that the public-policy-

linked conduct caused the dismissal; (4) the defendant

must not be able to offer an overriding justification for the

dismissal. Roberts v. Dudley, 140 Wn.2d 58, 64-65 (2000).

Respondents’ claims turn variously on 1) having been

discharged for reporting and then refusing to use an

unsafe, underrated valve in a pressurized pipe, 2) having

supported the above-mentioned refusing pipefitters by

offering testimony, reporting the retaliation, speaking out

in their support, car pooling with one of the refusing

pipefitters or testifying honestly during depositions in

connection with litigation on behalf of the refusing pipefit-

ters. Respondents have cited Washington State health and

safety laws and regulations that express public policy,

whose implementation has been thwarted by their dis-

charge. CP 254, 1242, 1245, 1317.

Petitioner now argues — having failed to raise this

claim either in the state trial court, or in the federal

district court below — that respondents’ claims are pre-

empted under the National Labor Relations Act, 29 U.S.C.

§§ 151 et seq. (Garmon). Pet. at 9.

In San Diego Building Trades Council v. Garmon, 359

U.S. 236, 244 (1959) this Court explained that the Na-

tional Labor Relations Board generally has exclusive

jurisdiction to resolve disputes involving unfair labor

practices, except where state-regulated conduct touches

“interests so deeply rooted in local feeling and responsibil-

ity that, in the absence of compelling congressional direc-

tion, we could not infer that Congress had deprived the

States of the power to act.” Respondents’ claims for wrong-

ful discharge in violation of Washington Health and Safety

laws fall within this exception. See Inter-Modal Rail

14

Employees Ass’n v. Burlington Northern and Santa Fe Ry.

Co., 73 Cal. App. 4th 918, 924-928 (1999); Paige v. Henry

J. Kaiser Co., 826 F.2d 857, 862-865 (9th Cir 1987), cert.

denied, 486 U.S. 1054 (1988).

As the California Court of Appeal has explained:

‘Congress’s main goal in enacting the NLRA

was to establish an equitable bargaining proc-

ess.... State laws which set minimum safety

standards do not interfere with the bargaining

process itself.... In Metropolitan Life v. Mass

[(1985) 471 U.S. 724 [105 S.Ct. 2830, 85

L. Ed. 2d 728]], the Supreme Court considered

the legislative history of the NLRA and made the

following statement: “Most significantly, there is

no suggestion in the legislative history of the Act

that Congress intended to disturb the myriad

state laws then in existence that set minimum la-

bor standards, but were unrelated in any way to

the processes of bargaining or self-organization.

To the contrary, we believe that Congress devel-

oped the framework for self-organization and col-

lective bargaining of the NLRA within the larger

body of state law promoting public health and

safety. The States traditionally have had great

latitude under their police power to legislate as to

the protection of the lives, limbs, health, comfort,

and quiet of all persons [Citation.] States possess

broad authority under their police powers to regu-

late the employment relationship to protect work-

ers within the State. Child labor laws, minimum

and other wage laws, laws affecting occupational

health and safety ... are only a few examples.

[Citation]”

15

As it is uniquely within the states’ police

powers to legislate for the health and safety of

their citizens, and such regulation does not inter-

fere with the NLRA’s goals, federal law does not

preempt such statutes.’

Inter-Modal, 73 Cal. App. 4th at 926-927 (citing Paige, 826

F.2d at 863-865) (emphasis in original).

Petitioner contends that the Eighth Circuit case of

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

1992) shows that Garmon is broader than has been recog-

nized and that, in fact, the NLRA does preempt “claims of

wrongful discharge in violation of state public policy by

workers claiming to be whistleblowers on workplace-safety

issues.” Pet., p. 9. Petitioner urges that this Court adopt

what it understands to be the Platt court’s approach to

Garmon and resolve a putative split on this issue between

the Eighth Circuit and other jurisdictions.

Respondents submit that petitioner reads more into

Platt than the Eighth Circuit asserts in that case, and that

the construction given to Garmon by the Eighth Circuit

does not differ significantly from that arrived at by other

courts. Indeed, rather than articulating new doctrine,

Platt was an expressly fact specific decision:

[OJ]n the facts of this case, we conclude that

Platt’s state law claims are preempted by the

NLRA as construed in Garmon and its progeny.

We do not reach the question whether employee

suits seeking redress for violation of state whis-

tle-blower statutes are generally preempted un-

der Garmon because we believe the ‘local

interest’ exception to Garmon preemption re-

quires a more fact-sensitive approach.

16

Platt, 959 F.2d at 95; see Inter-Modal, 73 Cal. App. 4th at

927 (Platt’s “ holding was limited to its facts”).

The facts on which the Platt court focused were that

the plaintiff had invoked both the grievance procedure

provided by the collective bargaining agreement and the

authority of National Labor Relations Board prior to

bringing his action in state court. See Platt, 959 F.2d at 95

n. 7 (“Paige v. Henry Kaiser Co., 826 F.2d 857, 862 (9th Cir.

1987), cert. denied, 486 U.S. 1054 (1988), upon which Platt

relied, is distinguishable for this reason”).

[It] is highly relevant that Platt unsuccessfully

sought relief through the grievance process, and

directly from the NLRB, before commencing this

lawsuit. ‘The risk of interference with the Board’s -

jurisdiction is ... obvious and substantial’ when

an unsuccessful charge to the Board is recast as

a state law claim. Local 926, IUOE v. Jones, 460

U.S. 669, 683 (1983). As the Eleventh Circuit

said in Parker v. Connors Steel Co., 855 F.2d

1510, 1517 (11th Cir. 1988), cert. denied, 490

U.S. 1066 (1989):

‘We believe that the [Garmon preemption] ra-

tionale has the greatest validity when a party

has sought redress for his claims from the NLRB

and in the face of an adverse decision the claims

are restructured as state law claims and pursued

in state court.’

Platt, 959 F.2d at 95. Respondents in this case, in contrast,

neither grieved the claims underlying this action nor did

they present them to the NLRB.

In addition, it is noteworthy, as the California Court of

Appeal observed in Inter-Modal, that the plaintiff in Platt

did not even assert that his claim fell within the local

17

interests exception to Garmon preemption. Inter-Modal,

73 Cal. App. 4th at 928; see Platt, 959 F.2d at 95. The

resulting “thin” analysis in Platt of the question of

whether state health and safety claims fall within Gar-

mon’s local interests exception was one of the reasons the

Inter-Modal court cited for declining to follow Platt. See

Inter-Modal, 73 Cal. App. 4th at 928.

Petitioner, in short, has adduced no authority for its

broad claim that state whistleblower actions are pre-

empted under Garmon. The case on which petitioner relies

is manifestly inapposite to the facts of this case, and

indeed, is unusually ill-suited to serve as the basis for

development of the law on this question.

Finally, respondents note that petitioner, a contractor

at the Hanford nuclear facility, asserts that its employees

at Hanford are not protected by Washington’s health and

safety laws. Pet. at 13. Petitioner has adduced no author-

ity showing that persons employed by contractors at

Hanford lack these protections, and respondents are

aware of none. See Resp. Appendix at 1la-12a.

Il. THE RIGHT TO LITIGATE VIOLATIONS OF

INDIVIDUAL RIGHTS IN COURT MAY NOT BE

WAIVED THROUGH A CBA, WHICH DOES NOT

INCLUDE A CLEAR AND UNMISTAKABLE

WAIVER OF THAT RIGHT

Citing this Court’s decision in Wright v. Universal

Maritime Serv. Corp., 525 U.S. 70, 79-80 (1998), the Court

of Appeals held that respondents were not obligated under

the Federal Arbitration Act (FAA) to arbitrate their wrong-

ful discharge claims, because the CBA did not clearly and

18

unmistakably waive their individual rights to litigate such

claims in court. Pet., Appendix 6a-8a.

Petitioner argues that the Court of Appeals erred,

because “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 ... ” Pet. at 15. Wright is not so

narrow. Wright articulates, and indeed reaffirms, a general

condition for the waiver of individual rights through

collective bargaining agreements:

Not only is petitioner’s statutory claim not sub-

ject to a presumption of arbitrability; we think

any CBA requirement to arbitrate it must be

particularly clear.... ‘We will not infer from a

general contractual provision that the parties in-

tended to waive a statutorily protected right

unless the undertaking is “explicitly stated.” More

succinctly, the waiver must be clear and unmis-

takable.’

Wright, 525 U.S. at 79-80 (citing Metropolitan Edison Co.

v. NLRB, 460 U.S. 693, 708 (1983)) (emphasis added).

The case whose language Wright quotes for this

proposition, Metropolitan Edison Co. v. NLRB, does not

even address the presumption of arbitrability. Metropoli-

tan, rather, concerned the conditions under which a CBA

may waive the statutory rights of certain individuals,

specifically the rights of union officials under the National

Labor Relations Act to not be subject to harsher sanctions

than other employees. Metropolitan, 460 U.S. at 695, 697-

698.

In Metropolitan, the union had filed an unfair labor

practice charge based on the employer’s discriminatory

19

punishment of union officials and the employer defended,

inter alia, by arguing that the union had waived the

officials’ statutory right to not be subjected to differential

punishment. Jd. at 705, 707-708. Metropolitan held there

was no waiver of the right, because the putative basis of

the waiver — acquiescence in the face of prior arbitration

decisions under the CBA affirming such punishment — did

not constitute a clear and unmistakable waiver of the

right. Id. at 708-710.

Thus, both this Court’s express language in Wright,

and the case from which it borrowed that language clearly

demonstrate that Wright articulates a general standard

for the waiver of individual rights through a collective

bargaining agreement, and not simply a qualification of

the LMRA’s presumption of arbitrability. The Court of

Appeals’ reliance on Wright in this case, therefore, was

manifestly appropriate, regardless of the applicability of

the FAA. See Rogers v. New York Univ., 220 F.3d 73, 75-77

(2nd Cir. 2000), cert. denied, 531 U.S. 1036 (2000) (holding

FAA did not compel arbitration of individual discrimina-

tion claim, because the CBA failed to satisfy Wright

standard for waiver of individual rights). Moreover, the

Court of Appeals’ finding that the CBA in this case failed

to satisfy the Wright standard is unassailable.

The CBA here is limited to disputes that “arise out of

the interpretation or application of this AGREEMENT.”

CP 171, Resp. Appendix at 19a. At no point does the CBA

include any “explicit incorporation of statutory” protec-

tions. See Wright, 525 U.S. at 80. Thus, even less than the

CBA in issue in Wright, which provided “fui arbitration of

‘matters under dispute,’” does the CBA in this case clearly

and unmistakably waive respondents’ rights to litigate in

20

court their claims for violation of state laws. See id. at 80-

81; see also Lingle, 486 U.S. at 411-413.

In short, there is no reason to doubt that Wright

articulates the condition under which the right to litigate

in court claims concerning rights based in law independ-

ent of a CBA may be waived through a CBA. Since the

language in this CBA is manifestly insufficient to effect

such waiver, this case offers an extremely poor vehicle for

resolution of the question petitioner would have this Court

address: “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 em-

ployment related claims.” Pet. at 15.

¢

CONCLUSION

For the foregoing reasons, this Court should deny the

petition for writ of certiorari.

Respectfully submitted,

RANDY BAKER

JOHN P. SHERIDAN

Counsel of Record

SHERIDAN & BAKER

Hoge Building, Suite 1200

. 705 Second Ave.

Seattle, WA 98104

(206) 381-5949

la

COURT OF APPEALS, DIVISION III,

STATE OF WASHINGTON

SCOTT BRUNDRIDGE, DONALD

HODGIN, JESSIE JAMES,

CLYDE KILLEN, PEDRO NICA-

CIO, SHANE O’LEARY, RAY-

MOND RICHARDSON, JAMES

STULL, RANDALL WALLI,

DAVID FAUBION,

AND CHARLES CABLE,

Appellants, MANDATE

No. 20157-1-III

Benton County

No. 99-2-01250-7

Vv.

)

)

)

)

)

)

)

)

)

)

)

FLUOR FEDERAL SERVICES”

INC. (formerly FLUOR DANIEL ?

NORTHWEST, INC.) a Washing- ?

ton Corporation, FLUOR HAN- )

FORD, INC., (formerly, FLUOR

DANIEL HANFORD, INC.), a )

Washington Corporation, /

)

)

)

)

)

)

)

)

)

Respondents.

JERRY NICHOLS, an individual

and his marital community,

DAVID FOUCAULT, an individual

and his marital community, AND

JIM HOLLADAY, an individual

and his marital community,

Defendants.

The State of Washington to: The Superior Court of the

State of Washington, in and

for Benton County

2a

This is to certify that the opinion of the Court of Appeals of

the State of Washington, Division III, filed on December

4, 2001 became the decision terminating review of this

court in the above-entitled case on August 7, 2002. The

cause is mandated to the Superior Court from which the

appeal was taken for further proceedings in accordance

with the attached true copy of the opinion.

In testimony whereof, I have hereunto

set my hand and affixed the seal

of said Court at Spokane, this

13th day of August, 2002.

/s/ Patricia P. Crandall

Clerk of the Court of Appeals, State of Washington

Division III

cc: John P. Sheridan

Dana L. Gold

William R. Squires

Lawrence C. Locker

Hon. Carolyn A. Brown

(SEAL)

3a

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

SCOTT BRUNDRIDGE,

DONALD HODGIN, JESSIE | NO. CT-99-5073-EFS

PEDRO NICACIO, SHANE | ORDER GRANTING

PLAINTIFFS’ MOTION

O’LEARY, RAYMOND TO REMAND TO

RICHARDSON, JAMES STATE COURT

STULL, RANDALL WALLI,

and DAVID FAUBION,

Plaintiffs,

we

FLUOR DANIEL, INC., a

California corporation;

FLUOR DANIEL HANFORD,

INC., a Washington

corporation; FLUOR DANIEL

NORTHWEST, INC., a

Washington corporation;

JERRY NICHOLS, an

individual and his marital

community; DAVID

FOUCAULT, an individual

and his marital community;

and JIM HOLLADAY, an

individual and his marital

community.

Defendants.

BEFORE THE COURT is Plaintiffs’ Motion to Re-

mand to State Court (Ct. Rec. 10). The Court heard oral

argument on the motion on October 14, 1999. John P.

Sheridan and Dana L. Gold represented Plaintiffs. William

R. Squires III and Elizabeth R. Kennar represented

4a

Defendants. Charlie MacLeod also participated for Defen-

dants. The Court has reviewed the briefing and record, has

considered the arguments, and is fully informed. For the

reasons stated below, Plaintiffs’ motion to remand is

granted.

I. BACKGROUND.

In August 1999, Plaintiffs filed their Complaint and

Amended Complaint in Superior Court of the State of

Washington for Benton County agains: Defendants. (Ct.

Rec. 6.) The Amended Complaint set forth the state law

causes of action of wrongful discharge in violation of public

policy and of civil conspiracy. (First Am. Compl. for Dam-

ages and Demand for Jury Trial, Ct. Rec 6, ¥ 3.2.)

Plaintiffs were union pipefitters who worked at the

United States Department of Energy (“DOE”) Hanford

nuclear weapons facility as employees of Defendant Fluor

Daniel Northwest, Inc. (“FDNW”). Defeadants FDNW and

Defendant Fluor Daniel Hanford, Inc. (“FDH”), which

created FDNW as an enterprise company, are wholly

owned subsidiaries of Defendant Fluor Daniel, Inc. (“FD”).

DFH is the primary DOE contractor responsible for “much

of the cleanup project at the Hanford facility.” (Decl. of

James H. Hanna in Supp. of Defs.’ Opp’n to Mot. for

Remand, Ct. Rec. 19, ¥ 2.)

Plaintiffs allege that, in March 1997, FDNW man-

agement directed five of the Plaintiffs (“Plaintiffs I”) to

install a valve in a line that would carry high-level nuclear

waste. The valve was under-rated for the pressure that

would flow through the pipe; Plaintiffs I refused to install

it for safety reasons. They were terminated in June 1997.

The remaining Plaintiffs (“Plaintiffs II”) vocally supported

5a

Plaintiffs I. Plaintiffs I filed administrative claims with

the Department of Labor under the Energy Reorganization

Act “ERA”). Prior to the administrative hearing, Plaintiffs

I entered a settlement agreement with FDNW that re-

quired immediate reinstatement of Plaintiffs I. In March

1998, Plaintiffs II and several others were terminated,

allegedly because FDNW was unable to absorb the rein-

statement of Plaintiffs I. Plaintiffs I were laid off again in

October and November 1998.

Defendants filed a Notice of Removal of Civil Action to

United States District Court (Ct. Rec. 1) and Amended

Notice of Removal of Civil Action of United States District

Court (Ct. Rec. 5) in August 1999, asserting that removal

was proper under 28 U.S.C. § 1441 because the District

Court has original “federal question” subject matter

jurisdiction under 28 U.S.C. § 1331.

In September 1999, Plaintiffs filed their motion to

remand asserting that removal of the case to federal court

was improper because the District Court lacked subject

matter jurisdiction.

II. STANDARD FOR REMOVAL

A defendant may remove to federal court only those

state court actions which could have been originally filed

in federal court. See 28 U.S.C. § 1441(a); Caterpillar, Inc. v.

Williams, 482 U.S. 386, 392 (1987). A claim could have

been filed in federal court if it arises under the laws of the

United States, i.e., if there is “federal question” subject

matter jurisdiction. See 28 U.S.C. § 1331. “Federal juris-

diction must be rejected if there is any doubt as to the

right of removal in the first instance.” Gaus v. Miles, Inc.,

980 F.2d 564, 566 (9th Cir. 1992). If any one of Plaintiffs’

6a

claims comes within the jurisdiction of the federal court,

removal is proper as to the whole case. See 28 U.S.C.

§ 1441(c). The party seeking removal has the burden of

establishing federal jurisdiction. See Emrich v. Touche

Ross & Co., 846 F.2d 1190, 1995 (9th Cir. 1988).

Ill. DISCUSSION

Defendants assert the Court has original “federal

question” subject matter jurisdiction because 1) Plaintiffs

claims are preempted by Section 301 of the Labor Man-

agement Relations Act (“LMRA”), 29 U.S.C. § 185, since

Plaintiffs’ employment with FDNW is governed by a

collective bargaining agreement (“CBA”) and since Plain-

tiffs’ claims require interpretation of that agreement; 2)

Plaintiffs seek recovery for the alleged violation of the

federal policies promoting worker safety and protecting

workers reporting health and safety violations; and 3)

strong federal and national security interests are neces-

sarily implicated by the involvement of the Hanford

facility and reconstruction project.

A. Federal Question Jurisdiction and Preemption

of Section 301 of the LMRA

If Plaintiffs’ claims require interpretation of the CBA,

they will be preempted by Section 301 of the LMRA and

therefore will arise under the laws of the United States

and provide federal question jurisdiction. See Caterpillar,

482 U.S. at 393 (holding that the preemptive force of the

federal law “converts an ordinary state common-law

complaint into one stating a federal claim”). “Section 301

governs claims founded directly on rights created by

collective-bargaining agreements.” Id. at 394. “[I]f the

7a

resolution of a state-law claim depends upon the meaning

of a collective-bargaining agreement, the application of

state law ... is preempted and federal labor-law principles

.. must be employed to resolve the dispute.” Lingle v.

Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-406

(1988). However, “as long as the state-law claim can be

resolved without interpreting the agreement itself, the

claim is ‘independent’ of the agreement for § 301 preemp-

tion purposes.” Jd. at 410.

1. Wrongful Discharge

Plaintiffs base their wrongful discharge claim on the

allegation that they were discharged in March, October,

and November of 1998 in retaliation for refusing to engage

in unsafe practices or in retaliation for vocally supporting

those who were fired after reporting safety problems.

(Mem. of P. & A. in Supp. of Mot. for Remand to State Ct.,

Ct. Rec. 12, at 1-2.) Under Washington state law a success-

ful claim of wrongful discharge in violation of public policy

requires showing that 1) a clear public policy exists; 2)

discouraging the employee’s conduct would jeopardize the

policy; 3) the public-policy related conduct causes the

dismissal; and 4) there was no overriding justification for

the dismissal. See Gardner v. Loomis Armored Inc., 128

Wash. 2d 931, 941 (1996). Defendants argue that proving

the third and fourth elements of the tort of wrongful

discharge in violation of public policy will require inter-

preting the CBA. (Ct. Rec. 5 ¥ 4; Defs.’ Opp’n to Pls.’ Mot.

for Remand, Ct. Rec. 20 ¥ B.2. at 9)

Interpretation of the CBA is not required-to determine

the propriety of Plaintiffs’ termination or Plaintiffs’ enti-

tlement to recovery. Plaintiffs rely on the factual history

8a

preceding their discharge as direct and circumstantial

evidence that retaliation was the reason. The CBA permits

layoffs based on skill, productivity and qualifications.

Plaintiffs assert that examination of their credentials

eliminates any question that they could have been laid off

for those reasons. Such an argument does not require an

interpretation of the CBA but rather the facts preceding

and surrounding their layoffs.

2. Civil Conspiracy

Plaintiffs base their civil conspiracy claim on the

allegation that Defendants’ conduct in laying them off in

March, October and November 1998 amounted to civil

conspiracy. (Ct. Rec. 12 at 2.) To succeed in their claim,

Plaintiffs must prove by clear, cogent and convincing

evidence that 1) “two or more persons combined to accom-

plish an unlawful purpose or combined to accomplish some

purpose not in itself unlawful by unlawful means” and 2)

“the alleged coconspirators entered into an Agreement to

accomplish the object of the conspiracy.” Corbit v. J.J. Case

Co., 70 Wash. 2d 522, 528-29 (1967). Defendants assert

that the CBA must be interpreted to determine if Defen-

dants’ acts were “unlawful means” or accomplished an

“unlawful purpose.”

The facts Plaintiffs allege to support their civil con-

spiracy claim are 1) that Defendant FDNW Construction

Director Foucault and Defendant FDH General Counsel

MacLeod deliberately misrepresented the terms of the

settlement agreement as requiring the lay off the same

number of pipefitters as were being reinstated under the

settlement agreement; this misrepresentation resulted in

the layoff of Plaintiffs II; 2) that Defendants insisted in

9a

laying off the same number of pipefitters as were rein-

stated despite the discovery of two jobs which would

prevent laying off all seven pipefitters; 3) that Defendant

FDNW Construction Operations Manager Holladay

discouraged managers from finding places for the return-

ing Plaintiffs. (Ct. Rec. 6 7 2.12.)

Even though analysis of the claim may involve identi-

fying the terms of the settlement agreement or of the CBA,

or both, no interpretation of the agreement or the CBA is

required. As discussed above, Plaintiffs rely on the facts

surrounding the discharges as evidence that Defendants

were conspiring to lay them off, not on the interpretation

of either the agreement of the CBA.

3. Conclusion

.

Neither Plaintiffs’ wrongful discharge claim nor

Plaintiffs’ conspiracy claim requires interpretation of the

CBA. The claims are therefore not preempted by Section

301 of the LMRA and do not provide federal question

jurisdiction on the basis of Section 301 preemption.

B. Federal Question Jurisdiction and Reliance on

Federal Policies

Plaintiffs assert that their discharges violated “state

and federal public policies of promoting worker safety,

protecting the environment from radioactive material and

hazardous waste, promoting the safe storage and disposal

of radioactive and hazardous materials promoting clean

water, and protecting those who report health and safety

violations.” (Ct. Rec. 6 43.2.) Defendants assert that

Plaintiffs’ claims arise under federal law and provide

federal subject matter jurisdiction because Plaintiffs 1)

—— Se

10a

assert their discharges violated federal public policies and

2) reference 42 U.S.C. § 5851, the whistleblower provision

of the ERA, in the recitation of facts portion of their

complaint (Ct. Rec. 6 Jq 2.3, 2.4).

On its face, Plaintiffs’ Complaint asserts no federal

law claim. Plaintiffs’ claims of wrongful discharge in

violation of public policy and civil conspiracy are state law

claims. See, e.g., Gardner, 128 Wash. 2d at 941 (setting

forth the elements for public policy wrongful discharge

torts; Thompson v. St. Regis Paper Co., 102 Wash. 2d 219,

232 (1984) (recognizing “a cause of action in tort for

wrongful discharge if the discharge of the employee

contravenes a clear mandate of public policy). Plaintiffs

explicitly state that “no recovery based on a federal claim

is sought.” (Mem. of P. & A. in Supp. of Mot. for Remand to

State Ct., Ct. Rec. 12 FY III at 7.) Mere reference to a

federal law or statute in the complaint does not create a

federal claim. See Rains v. Criterion Sys., Inc., 80 F.3d 339,

344 (9th Cir. 1996). Furthermore, Plaintiffs’ reference to

42 U.S.C. § 5851, specifically, does not create a federal

claim as a result of preemption. Section 5851 states that it

may not be construed to expand, diminish, or

otherwise affect any right otherwise available to

an employee under Federal or State law to re-

dress the employee’s discharge or other discrimi-

natory action taken by the employer against the

employee.

42 U.S.C.A. § 5851(h) (West 1995).

That the Plaintiffs rest their wrongful discharge claim

in part on federal public policies also does not create a

federal claim. “When a claim can be supported by alterna-

tive and independent theories — one of which is a state law

lla

theory and one of which is a federal law theory — federal

question jurisdiction does not attach because federal law is

not a necessary element of the claim.” Rains, 80 F.3d at

346. In Rains, the court observed that the plaintiff’s claim

“that he was wrongfully terminated in violation of public

policy” was “supported by three alternative theories — one

for each of the three sources of law he cites to establish

that his termination was in violation of public policy.” Jd.

at 347. Because one of the sources of law plaintiff cited

was “unquestionably wholly independent of federal law,”

the court found there was no federal jurisdiction. Jd. Here,

Defendants do not deny that Washington state laws

prohibit the discharge of an employee for reporting safety

violations.

Because Plaintiffs’ Complaint does not assert a federal

law claim and because Plaintiffs’ claims do not rest solely

on federal claims do not rest solely on federal public

policies, federal question jurisdiction does not attach on

the basis that Plaintiffs included federal public policy as a

theory for the wrongful discharge claim.

C. Federal Question Jurisdiction Stemming from

Strong Federal and National Security Interests

Defendants assert the existence of federal question

jurisdiction because strong federal and national security

interests are necessarily implicated because the events

and parties involved in the complaint relate to the Han-

ford facility. Federal question jurisdiction exists where a

suit concerns “matters affecting the operation of the

federal government, where the rule must be uniform

throughout the country.” American Pipe & Steel Corp. v.

Firestone Tire & Rubber Co., 292 F.2d 640, 643-44 (9th Cir.

12a

1961). In American Pipe, the court held that “the construc-

tion of subcontracts, let under prime contracts connected

with the national security, should be regulated by a

uniform federal law.” 292 F.2d at 644. Similarly, in New

SD, Inc. v. Rockwell International Corporation, 79 F.3d

953 (9th Cir. 1996), the court held that federal law gov-

erned a suit between a subcontractor and a prime contrac-

tor to the United States Air Force regarding a prime

contract for development of military hardware. Noting

that national security was implicated, the court relied in

part on American Pipe and held that

[w]Jhere the federal interest requires that “the

rule must be uniform throughout the country,”

... then the “entire“body of state law applicable

to the area conflicts and is replaced by federal

rules.” ... When federal law applies ... it fol-

lows that the question arises under federal law,

and federal question jurisdiction exists.

Rockwell, 79 F.3d at 955 (citations omitted).

Here, however, the suit does not involve a dispute

between prime- and sub-contractors regarding a con-

tracted for good or services. Rather, the suit concerns a

dispute between an employer and its employees. Although

the context of this dispute is arguably similar to those in

American Pipe and Rockwell since Plaintiff employees

worked on an environmental clean-up project at a federal

nuclear facility, caselaw does not clearly extend the

“strong federal and national security interest” federal

question jurisdiction to suits involving a government

contractor’s labor disputes. This Court declines to take so

large a step and finds there is no “national security inter-

est” federal question jurisdiction.

13a

IV. CONCLUSION

Since Defendants have failed to prove federal jurisdic-

tion exists on any of the three bases they assert, removal

of this case to federal district court is improper for lack of

subject matter jurisdiction. Accordingly,

IT IS HEREBY ORDERED:

1. Plaintiffs’ Motion for Remand to State Court (Ct.

Rec. 10) is GRANTED. :

2. This case is hereby REMANDED to Benton

County Superior Court.

IT IS SO ORDERED. The District Court Executive is

directed to enter this order, provide copies to counsel,

prepare and enter JUDGMENT accordingly, and CLOSE

THIS FILE.

DATED this day of 20th December 1999.

/s/ Edward F. Shea

EDWARD F. SHEA .-

United States District Judge

14a

EXHIBIT 34

FLUOR DANIEL

Fluor Daniel Hanford, Inc.

P.O. Box 1000

Richland, WA 99352

Fluor Daniel Northwest, Inc. (FDNW) and the above ~

Settlement Agreement Between Employers

Fluor Daniel Northwest, Inc. and

Terry Holbrook, Clyde Killen, Pete Nicacio,

Shane O’Leary, Dan Phillips,

James D. Stull, Randall J. Walli

DOL Case No. 98-ERA-4

named seven Complainants agree to the following:

1.

FDNW agrees to pay each of the Complain-

ants $42,000.

This $42,000 per Complainant is not a “make

whole” amount or based on any wage for-

mula, rather it is for case settlement.

FDNW agrees to offer reinstatement of em-

ployment to each of the Complainants within

two weeks of the signing of this Settlement

Agreement.

FDNW agrees to pay Complainants’ attor-

neys, the Government Accountability Project

and Project on Liberty and the Workplace, a

total of $40,000 in legal expenses.

FDNW and Complainants agree to work for

U.S. Department of Labor (DOL) approval of

this Settlement Agreement and FDNW will

pay the designated amounts within two

weeks of final DOL approval.

15a

=

6. FDNW admits no wrongdoing of any kind by

signing this Settlement Agreement.

7. Complainants agree DOL Case No. 98-ERA-4

is settled by the signing of this Settlement

Agreement.

8. Complainants agree that all disputes arising

out of their employment with FDNW are set-

tled by this Agreement as the purpose of this

agreement is to dispose of all disputes be-

tween Complainants and FDNW. This Agree-

ment constitutes a full and complete release

of all claims made or which could have been

made, against FDNW, its officers, employees,

or representatives with respect to the subject

matter of DOL Case No. 98-ERA-4.

9. FDNW and Complainants agree that this

Settlement Agreement is to be interpreted by

federal law governing these DOL proceedings

and as appropriate with the laws of the State

of Washington.

Signed by FDNW and Complainants this 23rd ‘iad of

February, 1998.

Complainants: For the Employer:

/s/ Terry Holbrook /s/ Joe D. Davis

- Terry Holbrook Joe D. Davis, President

/s/ Clyde Killen Fluor Daniel Northwest, Inc.

Clyde Killen

/s/ Pete Nicacio

Pete Nicacio

‘s/ Shane O’Leary

Shane O’Leary

/s/ Dan L. Phillips

Dan Phillips

/s/ James D. Stull

James D. Stull

/s/ Randall J. Walli

Randall J. Walli

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18a

SAFETY AND HEALTH

Section 1. The EMPLOYER acknowledges its responsibil-.

ity to comply with all applicable laws, ordinances, aad

regulations relating to safety and health. No employee will

be required to perform any work in an unsafe manner or

unsafe condition. °

Section 2. The employees covered by the terms of this

AGREEMENT shall at all times be bound by the safety

rules and regulations as established by the EMPLOYER in

accordance with the Department of Energy safety rules

and regulations. Any employee’s failure to comply with the

safety requirements heretofore referred to or failure to

participate and cooperate in such program shall be cause

for discharge.

‘Section 3. The UNIONS agree that all employees will be

required to use all required safety equipment and all

required protective clothing supplied by the EMPLOYER.

Failure or refusal to use such protective equipment is

cause for discharge.

Section 4. It will not be a violation of this AGREEMENT

when the EMPLOYER considers it is necessary to shut

down to avoid the possible loss of human life because of an

emergency situation that could endanger the life and

safety of an employee. In such cases, employees will be

compensated only for the actual time worked. In the case

of a situation described above whereby the EMPLOYER

requests employees to standby, the employees will be

compensated for the “standby” time. Employees shall not

be discharged for refusing to work in the above-described

situations.

19a

ARTICLE XXIV

GRIEVANCE PROCEDURE

Section 1. It is specifically agreed that in the event any

disputes arise out of the interpretation or application of

this AGREEMENT, excluding questions of jurisdiction of

work, which shall be adjusted pursuant to Article XXIII,

Jurisdictional Disputes, said disputes shall be settled in

accordance with the procedures set out herein. No such

grievance shall be recognized unless called to the attention

of the EMPLOYEE by the UNION or to the attention of

the UNION by the EMPLOYER in writing or postmarked

within ten (10) working days after the alleged violation

was committed.

Employees must notify their UNION within three (3)

working days of the alleged violations

Section 2. Grievances shall be settled according to the

following procedure.

Step 1: The written disputes shall be referred to

the representative of the UNION involved or his

designated representative and the EMPLOYER’S

designated representative.

Step 2: In the event that the representative of

the UNION and the EMPLOYER'S designated

representative cannot reach agreement within

five (5) working days after a meeting is arranged

and held, the matter shall be referred to the rep-

resentative of the International Union and the

designated representative of the EMPLOYER.

Step 3: In the event that the representative of

the International Union and the EMPLOYER’S

representative are unable to resolve the dispute

within ten (10) calendar days after completion of

20a

Step 2, it shall be adjusted by arbitration in the

manner hereinafter set forth.

The EMPLOYER or his designated representa-

tive and the UNION shall then select an arbitra-

tor for final and binding arbitration. The

impartial arbitrator shall be selected from a

panel of arbitrators submitted by the Federal

Mediation and Conciliation Service in accordance

with their procedures. The written decision of the

Arbitrator shall be binding upon all parties. The

arbitrator shall have no authority to change,

amend, add to, or detract from any of the provi-

sions of this AGREEMENT. The expense of the

impartial arbitrator shall be borne-equally by the

EMPLOYER and the UNION.

Step 4: The time limits specified in any step of

the grievance procedure may be extended by mu-

tual agreement of the parties initiated by the

written request of one party to the other, at the

appropriate step of the grievance procedure.

However, failure to process a grievance, Or fail-

ure to respond in writing, within the time limits

provided above, without a request for an exten-

sion of time, shall be deemed a waiver of such

grievance to the other without prejudice or with-

out precedent to the processing of and/or resolu-

tion of like or similar grievances or disputes.

2la

EXHIBIT 13

[LOGO]

FLUOR DANIEL NORTHWEST

INTEROFFICE CORRESPONDENCE

CONFIDENTIAL

Date: June 18, 1997

To: David Foucault Reference: CGL-97-146

Location: Richland, E668

Client

From: Curt Larsen : ,

Location: Richland, H7-04 Sungect Selection “

craft employee’s for a

Telephone: (509) 376-3367 layoff

ec: V.C. Hodgin

Per Jim Holladays’s request I conducted an internal inves-

tigation on June 17, 1997 to see if Fluor Daniel Northwest

(FDNW) has a selection process that management follows

when selecting craft employees to be laid off.

I spoke with Area Managers, Superintendents, General

Foreman and Foreman from the 300, 200E, 200W and

100 Areas. The selection process is as follows:

1. Area Managers and Superintendent work closely

together in projecting the work forecast on a weekly

basis. As projects slow down or funding is cut the

Area Managers and/or the Superintendents contact

the General Foreman (GF) or Foreman of the af-

fected craft and inform them of the number of em-

ployees needed to be cut.

2. The GF and/or the Foreman select the craft employ-

ees by name to be laid off after discussions with

other area GF/Foreman for possible placement. The

selection process (not particularly in this order) is

as follows; work performance, length of service, de-

pendability, certifications and training. Once the

22a

names have been selected the GF and/or the Fore-

men ask their crew if anyone would like to volun-

teer to be laid off. If no one steps forward then the

names are submitted to the Area Manager. If some-

one volunteers to be laid off their name is added and

someone is deleted from the original list.

3. The Area Manager(s) and Superintendent(s) review

the list among themselves checking for positions

available within different job area.

During this investigation it was brought to my attention

by several employees, bargaining and non bargaining

that Jim Holladay side steps the selection process. Mr.

Holladay has called Human Resources with names of

craft employees to be laid off without going through the

GF/Foreman. Furthermore, Mr. Holladay has pulled

individuals off the layoff list without notifying the

GF/Foreman.

In summary, FDNW has a selection process that is used

when downsizing craft employee: