Prologue — Burklow v. Baskin-Robbins USA, Co.

oe), Supreme Court, U.S.

FILED

05 202 aye 3 2009

K

No.

IN THE

Supreme Court of the United States

JIM BURKLOW ETAL. , PETITIONERS

BASKIN-ROBBINS USA, Co. ET AL

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CHARLES 8S. WIBLE

Counsel of Record

324 ST. ANN STREET

P.O. Box 337

OWENSBORO, KY 42302

270-926-3377

Attorney for Petitioners

CURRY 4&4 TAYLOR @ WAGH O.C. @ (202) 223-3160 ¢ USSECiINneFO.coOMm

i

QUESTION PRESENTED FOR REVIEW

_ Section 301(a) of the Labor-Management Relations

Act states that “Suits for violation of contracts between

an employer and a labor organization representing

employees in an industry affecting commerce as defined

in this chapter, or between any such labor organizations,

may be brought in any district court of the United States

having jurisdiction of the parties, without respect to the

amount in controversy or without regard to the

citizenship of the parties.” 28 U.S.C. § 185(a). It is well

established that a suit to invalidate a contract, where

plaintiffs make no allegation that a contract was violated,

may not be brought under § 301(a).

The question is:

Whether a district court must exercise subject

matter jurisdiction pursuant to § 301(a) of a suit

for a properly pled violation of an agreement

between an employer and a labor organization,

even if the defendants allege but the plaintiffs

deny that another agreement was subsequently

executed that supercedes or invalidates the

agreement that is the basis of the suit.

ii

PARTIES TO THE PROCEEDING

JIM BURKLOW; KIRBY CAIN; PHIL CALHOUN; GARY

CISSNA; WAYNE DUNCAN; RICKY EPISON; MIKE

EVANS; WILLIAM GILLASPIE; BARRY HAGAN; JAMES

HATFIELD; MARK HAWKINS; JOE HOFFMAN;

MALCOLM HOWARD; CHARLES I. JAMES; SCOTT

KNIGHT; BILL MCDANIEL; CHUCK MITCHELL; SCOTT

MULLIGAN; NICK NICELY; GEORGE PAPPAS; JEFF

PAYNE; JAROD SIMON; BOBBY SIKES; ROBERT T.

SUTHERLAND; ALLEN R. TINSLEY; RONNIE THOMAS;

DANNY WATHEN; DARREN WATHEN; ROBBIE BAIZE;

ROBERT A. GREATHOUSE; HENRY HEAD; LARRY

HENDERSON; JAMES JARBOE; ROGER KEOWN; JEFF

KASINGER; DARRELL MCELWAIN; DAVID MIDKIFF;

GARY RANSON; RONALD ROBERTS; CARL SNYDER;

STEPHEN TEASLEY; JAMES TIGUE; JOHN WATHEN;

JOHN PAPPAS, PETITIONERS

BASKIN-ROBBINS USA, CO; INTERNATIONAL

BROTHERHOOD OF TEAMSTERS, A.F.L., C.1.0. LOCAL

UNION 783, RESPONDENTS

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW. ............::ceccessssesssserseseees i

PARTIES TO THE PROCEEDING ...<cccccccessesseseoserecsereessoensustecessoreces i

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OPINIONS BELOW.............-+«. chitin... eiienesiininatniaiuimemncaiieid l

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SEITE : chicnincedicianetrenccecenittencsiintensensensiiptinnniessintiecenenennaeits 2

REASONS FOR GRANTING THE PETITION..........:.:-cceseeseseeeseeeees 7

APPENDIX

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Sy an I aicsiicnisisentcinecessiescapnitampmntiaanpeidinaniedl 5a

District Court Memorandum Decision & Orders.............. 6a

Denial of Petition for Rehearing ................:0seseseee+ mists 24a

iv

TABLE OF AUTHORITIES

CASES

ADCOX V. TELEDYNE, INC., 21 F.3D 1381 (6TH CIR. 1994)

sieesiteeaielietanieniabiddiabecabncaninviennennninapaibestiiataniaaiiiaeseniiebeduia 5, 15,17

ARBAUGH V. YELT CORP., 380 F.3D 219, 223-25 (5TH CIR.

Se viciticatnaisneiciciiiitaaiiaaihiataceaitala dais tilaaaiasiinaal 25

ARIZONANS FOR OFFICIAL ENGLISH V. ARIZONA, 520 U.S.

Be Pay CTD teininseenesneniiseciivicniiaivevviaibacasniiabimeiitnialapiadaiadeaacialdilatimd 10

BAUER V. RBX INDUSTRIES, INC., 368 F.3D 569 (6TH CIR.

RACERS SSSR reS vesactarmn essa BME PASSIM

BELL V. HOOD, 327 U.S. 678, 681-83 (1946).........cccccccceeeeee 19, 20

Le Oe PERE ES RETEST ENA SET RS EN EN OE nae er %

COHENS V. VIRGINIA, 6 WHEAT. 264 (1821) .......:0ccccessrsresrerees 10

CUTSHALL V. SUNDQUIST, 193 F.3D 466, 471-72 (6TH CIR.

|, RRB SR ey se cree ieee late Ninciac svar nae antes) Her ee AO eRe RF 26

EIGHTH (NOVARTIS SEEDS, INC. V. MONSANTO COMPANY,

Er IE cnhischsitaccitiniinnitinniattinaiiiithshaittaldeaaleael Mindat 23

FIRST (U.S. v. LAHEY CLINIC HOSPITAL, INC., 399 F.3D 1

CE See wsccivicceccsentascesntesiicunmaiianieniasiciaiaiinattiaiailaiaiasas 23

GODFREY V. PULITZER PUBLISHING CO., 161 F.3D 1137 (8TH

CARR. IGG) acocececsosesecarsnessescovocscssssossssosocsesossocottoacossenoocseaseens 23, 25

HEUSSNER V. NATIONAL GYPSUM CO., 887 F.2D 672 (6TH

Sy STITT senshtanctscniccesnseaicta shievenchninsbiicstanniisaehiiichansiceasiahidiapbaiiiaa tiated 5, 15

Vv

IN RE STOCK EXCHANGES OPTIONS TRADING ANTITRUST

LITIGATION, 317 F.3D 134 (20038)........0cvsseeseseresrernerensesernenens 23

INTERNATIONAL UNION OF OPR. ENGR. V. RABINE, 161 F.3D

487 (PTH CUR. 1996)... .cevcocesessesscsecevsrcevsevevensevevesveceeoeneers PASSIM

J. W. PETERS, INC. V. BRIDGE, STRUCTURAL AND

REINFORCING IRON WORKERS, LOCAL UNION 1, 398 F.3D

KLINE V. BURKE CONSTRUCTION Co., 260 U.S. 226 (1922).. 22

LIBYAN ARAB JAMAHIRIYA, 376 F.3D 1123, 1134 (D.C. Cir.

RS a On eo sae ESN ERT ae kt ow 23

MORRISON V. AMWAY CORP., 323 F.3D 920, 928-29 (11TH CiR.

RE ES SASL er eT CN 25

ree ses 17

NEW ORLEANS PUB. SERV., INC. V. COUNCIL OF CITY OF

NEW ORLEANS, 491 U.S. 350, 359 ....0......ccccoccercesseeceesees 10, 22

NINTH (U.S. V. MORROS, 268 F.3D 695, 699-703 (9TH CIR.

NOWAK V. IRONWORKERS LOCAL 6 PENSION FUND, 81 F.3D

Ce ae 19

RICHARD V. HOECHST TELANESE CHEMICAL GROUP, 355

fk TE ee eee teense me” 25

SAFE AIR FOR EVERYONE V. MEYER, 373 F.3D 10385, 1038-40

OR ic a 23

vi

SECOND (DA SILVA V. KINSHO INTERN. CORP., 229 F.3D 358

ETT Ce TORR LOE BE OPN TS 23, 24

STEEL Co. V. CITIZENS FOR A BETTER ENVIRONMENT, 523

Re Ith hersnciriccstnintaiactitinibsiein kastiesnlsihatiatinstainnaiiinitdies PASSIM

TENTH (DAVOLL V. WEBB, 194 F.3D 1116 (10TH C1R. 1999)

TEXTRON LYCOMING RECIP. ENG. V. AUTO. WORKERS, 523

RR ee ee 7, 8, 11

VERIZON MARYLAND, INC. V. PUBLIC SERVICE

COMMISSION OF MARYLAND, 535 U.S. 635 (2002).............. 20

l

COME Plaintiffs-Appellants, Jim Burklow, et al.,

pray for — “tition for a writ of certiorari from this Court

to the L_ © 2d States Court of Appeals for the Sixth

Circuit to review its judgment in the matter, Burklow, et

al., v. Baskin-Robbins USA, Co. and International

Brotherhood of Teamsters, A.F.L., C.I.0. Local Union

No. 783, Sixth Circuit case no. 03-6115, issued January 12,

2005.

OPINIONS BELOW

Opinion, Jim Burklow, et al. v. Baskin-Robbins USA, Co.

and International Brotherhood of Teamsters, A.F.L.,

C.1.0. Local Union No. 783, No. 03-6115 (6 Cir. Jan. 12,

2005)

Judgment, Jim Burklow, et al. v. Baskin-Robbins USA,

Co. and International Brotherhood of Teamsters, A.F’.L.,

C.1.0. Local Union No. 783, No. 4:01-CV-147-M (W.D. Ky.

Jul. 22, 2003) (R. 85)

Memorandum Opinion and Orders, Jim Burklow, et al. v.

Baskin-Robbins USA, Co. and _ International

Brotherhood of Teamsters, A.F.L., C.I.0. Local Union

No. 783, No. 4:01-CV-147-M (W.D. Ky. Jul. 22, 2003) (R.

84)

JURISDICTION

The judgment of the United States Court of

Appeals for the Sixth Circuit was entered on January 12,

2005. The Court of Appeals denied a timely petition for

rehearing with suggestion for rehearing en banc on May

7, 2005. The jurisdiction of this Court is invoked under 28

US.C. § 1254(1).

2

The jurisdiction of the district court was invoked

under 29 U.S.C. § 185(a), because the plaintiffs brought a

suit for violation of a contract between an employer and a

labor organization representing employees in an industry

affecting commerce as defined in the Labor-Management

Relations Act. The primary issue in this case is whether -

the district court did, in fact, have jurisdiction pursuant to

that statutory provision.

RELEVANT PROVISIONS INVOLVED

29 U.S.C. § 185(a):

“Suits for violation of contracts between an

employer and a labor organization representing

employees in an industry affecting commerce as

defined in this act, or between any such labor

organizations, may be brought in any district court

of the United States having jurisdiction of the

parties, without respect to the amount in

controversy or without regard to the citizenship of

the parties.”

STATEMENT

In 1998, Plaintiffs-Appellants (“the members"),

members of the International Brotherhood of Teamsters,

Local Union No. 783 (“the Union") in Owensboro,

Kentucky, entered into a four-year collective bargaining

agreement with Defendants-Appellees, Baskin Robbins

U.S.A., Co. (“Baskin Robbins"), that would assure them

secure jobs for four years in return for short-term

concessions as to pay and benefits. R.75, Memorandum

in Response to Defendants’ Motion for Summary

3

Judgment, Ex. B. Evidence of record supports a finding

that Baskin Robbins intended to close the plant before

the end of the four year contract period when it made the

agreement or at least made the decision soon afterwards.

R. 75, Memorandum in Response to Defendants’ Motion

for Summary Judgment, Ex. A. Baskin Robbins and the

Union later entered into a “successors and assigns clause”

to the 1998 Agreement, which provided for $1 million in

liquidated damages to be paid to employees if the plant’s

operations were transferred elsewhere. 6a,

Memorandum, Opinion, and Order, at 7a.

In January 2001, Baskin-Robbins announced that it

was closing the plant and transferring its operations on

March 15, 2001, prior to the end of the 1998 Agreement

term. 6a, Memorandum Opinion and Order, at 7a. The

Union negotiated a plant closing agreement, but the

members claim the Union deceived them about whether a

vote in favor of the new agreement would eliminate their

opportunity to pursue a grievance for failure to honor the

successors and assigns clause. 6a, Memorandum Opinion

and Order, at 7a-8a. The Union also represents the

workers who ended up with Baskin-Robbins’ business

after the Owensboro plant closure.

The members filed this “hybrid” action for violation

of the 1998 collective bargaining agreement against

Baskin-Robbins and for breach of the duty of fair

representation against the Union in the United States

District Court for the Western District of Kentucky. The

basis of jurisdiction was § 301 of the Labor-Management

Relations Act. R.29, Second Amended Complaint, at 4

VL.

4

The complaint contains the following allegations

that Baskin-Robbins had breached the 1998 Agreement

and the successors and assigns clause as follows:

The Plaintiffs herein allege a breach in the

contract clause requiring Defendant, Baskin-

Robbins to inform the Union 30 days prior to

entering into negotiations that would affect the

relationship between Baskin-Robbins USA, Inc.

and Teamsters Local No. 783. The Plaintiffs

herein further allege Defendant, Baskin-Robbins

breached the contract by failing to abide by the

contract liquidated damages clause [“successors

and assigns clause”| thereby illegally denying

members their right to the bargained-for

iiquidated damages for the completion of only 3

years of a 4 year agreement.

R. 29, Second Amended Complaint, at 7 XV (clarification

added). In their response to Baskin-Robbins’ motion for

summary judgment, the members also alleged that

Baskin-Robbins had anticipatorily breached the 1998

Agreement by conceiving and implementing a plan to

close the Owensboro plant even before the 1998

Agreement had been signed. R. 75, Memorandum in

Response to Defendants’ Motion for Summary Judgment,

at 14-15.

Baskin-Robbins’ primary defense was that the

1998 Agreement was not valid because it had been

superceded by the plant closing agreement and that

therefore the district court lacked subject matter

jurisdiction of the case under Sixth Circuit precedent.

R 42, Memorandum in Support of Defendant Baskin

5

Robbins USA, Co's Motion for Summary Judgment, at 16-

18.

The members relied on this Court’s recent decision

in Textron Lycoming Engine Div. v. UAW, 523 U.S. 654

(1998) to support its position that the district court had

jurisdiction. R. 75, Memorandum in Response to

Defendants’ Motion for Summary Judgment, at 19-24.

Textron had held that a district court only has jurisdiction

of suits in which the plaintiffs allege a breach of a

collective bargaining agreement, but because of

widespread confusion over the reach of § 301 jurisdiction,

this Court went on to make its holding very precise:

This does not mean that a federal court can never

adjudicate the validity of a contract under § 301.

That provision simply erects a gateway through

which parties may pass into federal court; once

they have entered, it does not restrict the legal

landscape they may traverse. Thus, if, in the

course of deciding whether a plaintiff's entitled to

relief for the defendant's alleged violation of a

contract, mt inter t e

defense that the contract was invalid the court

consistent with § 30 mudi t

ense. :

Textron, 523 U.S. at 657-58.

In this case, the District Court dismissed for lack

of subject matter jurisdiction without any findings that

any of the agreements were valid or invalid, relying on

two Sixth Circuit cases, Adcox v. Teledyne, Inc., 21 F.3d

1381 (6" Cir. 1994) and Heussner v. National Gypsum

Co., 887 F.2d 672 (6 Cir. 1989), that predated Textron: