Opposition Brief — Foreman v. AS Mid-America, Inc.

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preme Court of the Unit

In The

October Term, 1998

ted

Petition For Writ Of Certiora

lo The Nebraska Supreme Court

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irtes petitioners (collectively, “Plaintiff

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ploye of Respondent AS Mid-Amer:

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1l-America or the ‘(¢ ompany no wor

pany during a strike in 1993. They filed

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VI1G LITLE TICaA SCCKINS recovery rO! eat:

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1 fallure to protect them from

Dy returning strikers. Their la

rth five separate claims for relief. The firs

ion asserts a breach of Plaintiffs’ third part)

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rights under a strike settlement agreement

0 Work Resolution.” The

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rts a breach of an oral contract based on

issment-free workplace The thir

fan implied unilateral

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frauduient misrepresentation na intent

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through the grievance and arbitration procedure and

referred to an arbitrator. In one instance, discipline

imposed by the Company was upheld, and in three

instances the discipline was overturned.

Plaintiffs were all either strike replacements or cross-

overs (13 strike replacements; 1 crossover). Twelve of the

fourteen Plaintiffs resigned their employment sometime

after May 13, one was terminated for poor performance,

and one was laid off. Plaintiffs filed no grievances pro-

testing the Company’s alleged failure to shield them from

harassment. Nor did they file any unfair labor practice

charges with the National Labor Relations Board

(“NLRB”) protesting the alleged harassment by the

returning strikers or the Company’s alleged “ratification”

of that harassment.

REASONS WHY THE WRIT SHOULD BE DENIED

I. The Nebraska Supreme Court’s Holding That Plain-

tiffs’ Oral Contract Claims Are Preempted Under

The Garmon Doctrine Does Not Warrant Review By

This Court

The first issue presented for review “is a variant of a

familiar theme.” San Diego Building Trades Council v. Gar-

mon, 359 U.S. 236, 239 (1959). Under what is commonly

referred to as the Garmon preemption doctrine, this Court

forbids state and local regulation of activities that are

“protected by § 7 of the [National Labor Relations Act], or

constitute an unfair labor practice under § 8.” Id. at 244.

See also 29 U.S.C. §§ 157, 158. The rationale behind Gar-

mon preemption is straightforward: allowing the states to

regulate conduct within “the central aim of federal regu-

lation involves too great a danger of conflict between

power asserted by Congress and requirements imposed

by state law.” Garmon, 359 U.S. at 244. “[T]he Garmon rule

prevents states not only from setting standards of con-

duct inconsistent with the substantive requirements of

the NLRA, but also from providing their own regulatory

or judicial remedies for conduct prohibited or arguably

prohibited by the Act.” Building & Trades Council v. Assoct

ated Builders, 507 U.S. 218, 225 (1993) (citing Wisconsin

Dept. of Industry v. Gould, Inc., 475 U.S. 282, 286 (1986))

“Garmon preemption prohibits regulation even of

activities that the NLRA only arguably protects or pro-

hibits.” Building & Construction Trades Council, 507 U.S. at

225 (emphasis in original). Thus, if the same facts sup-

porting a breach of an employment contract or tort claim

would arguably constitute an unfair labor practice under

the NLRA, state court jurisdiction must yield to the

NLRB. See Caterpillar v. Williams, 482 U.S. 386, 397-98

(1987). The critical inquiry in deciding whether a matter

is Garmon pre-empted is “whether the controversy pre-

sented to the state court is identical to... or different

from .. . that which could have been, but was not,

presented to the Labor Board.” Sears, Roebuck and Co. v.

San Diego County District Council of Carpenters, 436 U.S.

180, 197 (1978); accord Belknap, Inc. v. Hale, 463 U.S. 491,

510 (1983). Where the controversies are identical, as they

are here, state court jurisdiction is prohibited. Sears, 436

U.S. at 197

A. The Nebraska Supreme Court’s Garmon Pre-

emption Analysis Is Ill-Suited For Supreme

Court Review.

Over a span of ten pages, the Nebraska Supreme

Court carefully and thoroughly analyzed Garmon and its

progeny. (App. 12-22). In particular, the court found

guidance” from this Court’s decision in Belknap. (App.

14). As Plaintiffs concede, the court “examined the facts

of Belknap in detail.” (Pet. at 13). Based on its interpreta-

tion of Belknap, the Nebraska Supreme Court found that

Plaintiffs’ oral contract claims were preempted by the

NLRA. (App. 20)

Plaintiffs claim that the Nebraska Supreme Court’s

holding “is contrary to United States Supreme Court

precedent and policy on the preemption of replacement

workers’ state law claims by the National Labor Relations

Act” (Pet. at 8). A petition for writ of certiorari, however,

‘is rarely granted when the asserted error consists of

erroneous factual findings or the misapplication of a

properly stated rule of law.” S. Ct. R. 10. Yet, the

Nebraska Supreme Court’s purported misapplication of a

properly stated rule of law — namely, this Court’s Garmon

preemption rule as set forth in Belknap — is exactly what

Plaintiffs ask this Court to review. Supreme Court Rule 10

explicitly declares Plaintiffs’ claim to be inappropriate for

review by this Court.

B. The Nebraska Supreme Court’s Holding Faith-

fully Adhered To This Court’s Garmon Preemp-

tion Principles

Even if Plaintiffs’ oral contract claim was appropriate

for review, it is clear that the Nebraska Supreme Court

correctly applied this Court’s preemption doctrine to con-

clude that the NLRA preempted that claim. Section 7 of

the NLRA provides employees with the right to “refrain’

from union or concerted activities, including the right to

refuse to engage in a strike. See 29 U.S.C. § 157; Pattern

Makers’ League of North America v. NLRB, 473 U.S. 95, 101

(1985) (“[W]hen employee members of a union refuse to

support a strike ..., they are refraining from ‘concerted

activity “). Section 8(a)(1) in turn prohibits an employer

from interfering with an employee’s right to refrain from

engaging in such protected activities. See 29 U.S.C

§ 158(a)(1).7 That prohibition includes placing an affirma-

tive duty on an employer not to acquiesce in the subjuga

tion of one group of employees’ rights by another:

[t]he [NLRA] imposes an affirmative duty upon

an employer to insure that his obligations to

maintain discipline in the plant and to provide

his employees with the opportunity to work

without interference from their co-workers is

not delegated or surrendered to any union or

See also Oklahoma Allied Telephone Co., 210 N.L.R.B. 916,

921 (1974) (“[t}he statute means that the right to refrain from

union or concerted activities is as important as the right to

engage in union or concerted activities. For an employer

to interfere with the exercise of either right is equally

objectionable”).

iti-union group, and an employer who acqui

esces in the exclusion of employees from his

plant by such a group will be regarded as

having discriminated against the excluded

employees in violation of Section 8(a)(3)

Bond, 145

N.L.R.B. 99, 127 (1963), enf'd, 361 F.2d 8 (5th Cir. 1966),

|

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ni A Division of Judy

ert. dented, 385 U.S. 842 (1966); see also Newport News

pbuilding, 236 N.L.R.B. 1499, 1509-09 (1978) (holding

that the employer violated Section 8(a)(2) of the Act by

acquiescing in, condoning, ratifying and failing to resist

the illegal acts and conduct of [union members]”).

Here, Plaintiffs claim that AS Mid-America failed to

protect them from the harassment and interference o

+

their co-workers, which resulted from Plaintiffs’ exercise

of their Section 7 right not to participate in the strike. As

the Board recognized in Newport News and Brewton Fash

ms, Section 8(a)(1) places an affirmative duty on the

Company not to acquiesce in the subjugation of Plaintiffs’

Section 7 rights by their co-workers.* Thus, the Nebraska

+ Plaintiffs’ attempts to distinguish Newport News and

I B

Brewton Fashions are unpersuasive. That neither case discussed

preemption or involved employees bringing state law claims

against their employer (PI. Pet. at 14-15) is hardly surprising, as

the NLRB does not hear state law claims. If anything, Plaintiffs’

observations merely confirm that their claims seek to impinge

on “the exclusive jurisdiction of the Board over matters

arguably within the reach of the Act.” Local 926, International

Union of Operating Engineers v. Jones, 460 U.S. 669, 680 (1983).

Moreover, while Plaintiffs argue that Newport News and Brewton

ashion merely address “controversies between competing

unions and their employer” (Pet. at 14), no such limitation is

ipparent from either of the Board’s holdings. Further, implying

Supreme Court correctly concluded that AS Mid-Amer

s “fail » to fulfill these pr Ss | -harassment|]

5 Talure to fulfill these promises |of non-harassment|]

1

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ind/or the condonation of the acts committed by union

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ficials is actually or arguably prohibited by the NLRA

[he Nebraska Supreme Court then addressed the

ritical inquiry: whether Plaintiffs’ claims are identical to

those that could have been presented to the NLRB. Sear

$36 U.S. at 197; Belknap, 463 U.S. at 510. As the Court

noted, AS Mid-America’s alleged failure to protect Plain

tiffs from harassment would, if proved, not only consti

tute a breach of an oral agreement, but also a violation of

federal labor law. (App. 22). See also Newport News, 2

NLRB at 1506-07; 29 U.S.C. § 158(a)(1). Moreover, “the

6

focus of the state law breach of contract action and NLRB

determinations would be the same whether AS Mid

America acted or failed to act such that its replacement

workers were subjected to harassment.” (App. 22). Where

the controversies are identical, as they are here, state

court jurisdiction must yield. Sears, 436 U.S. at 197

Belknap, 463 U.S. at 510. Thus, the Nebraska Supreme

Court’s conclusion that the NLRA preempted Plaintiffs’

oral contract claims is faithful to the analysis set forth in

Garmon and its progeny.

such a limitation would run counter to the language of the

NLRA, which makes it an unfair labor practice for an employer

‘to interfere with, restrain, or coerce employees in the exercise”

of rights protected under Section 7 of the Act. 29 U.S.¢

§ 158(a)(1)

XQ

( [The Nebraska Supreme Court Properly Con-

cluded Belknap Is Inapplicable On Its Facts

Despite this straightforward analvsis, Plaintiffs main

tain that the Nebraska Supreme Court disregarded this

Court’s holding in Belknap. To the contrary, the Nebraska

supreme Court found “guidance” from Belknap. (App

14). As even Plaintiffs grudgingly concede, the Nebraska

Supreme Court “examined the facts of Belknap in detail.”

(Pet. at 13). In Belkna

p, the employer promised its strike

eplacement workers that they would be retained beyond

the conclusion of the strike. Belknap, 463 U.S. at 494-95.

Indeed, strike replacements signed documents confirm-

ing that they we:2 permanently replacing striking

workers. Id. When the strike concluded, however, the

employer reneged on its commitment to the strike

replacements and laid them off in favor of the returning

strikers. Id. at 496. The laid off replacements sued for

breach of contract and misrepresentation.

In analyzing whether the replacement workers’

claims were preempted by Garmon, this Court reiterated

that the critical inquiry is “whether the controversy pre-

sented to the state court is identical with that which could

be presented to the [NLRB].” Belknap, 463 U.S. at 510.

Under the facts in Belknap, the focus of any NLRB pro-

ceeding would be whether the offer of permanent

employment to the replacements violated the Section 7

rights of the strikers to be reinstated at the conclusion of

an unfair labor practice strike. 463 U.S. at 509-10. Indeed,

the NLRA precludes the permanent replacement of unfair

labor practice strikers. See NLRB v. Mackay Radio & Tel.

Co., 304 U.S. 333 (1938). Conversely, the controversy

brought before the state court focused on whether the

discharge of the replacements at the end of the strike

violated the rights of the replacements. Thus, the contro

versies were very different, one focusing on the propriety

of hiring the replacements, and one focusing on the pro

priety of firing them. Significantly, the employer never

contended that the act of discharging the replacements

was an unfair labor practice. Accordingly, the Supreme

Court refused to apply the Garmon doctrine under those

racts.

The Nebraska Supreme Court correctly concluded

that the facts in Belknap are “distinguishable from those in

the case at bar.” (App. 20). Here, Plaintiffs were not

discharged or laid off at the conclusion of the strike as

occurred in Belknap. Moreover, the nature of the alleged

promise was different: “[i]n Belknap, Inc., the employer

promised the replacement workers nothing more than

permanent employment. In the instant case, AS Mid-

America promised the replacement workers not only per-

manent employment, but also protection from harass-

ment, discrimination and intimidation.” (App. 20).

Indeed, the gist of Plaintiffs’ complaint is that the Com-

pany allowed union employees to “conduct a campaign

of harassment and intimidation against permanent

replacement and cross-over workers.” (Pet. at 3-4).

Thus, unlike in Belknap, resolution of the “critical

inquiry” mandates preemption, because “the conduct at

issue or the controversy presented was identical to that

which could be presented to the NLRB.” (App. 19). See

also Belknap, 463 U.S. at 510. As the Nebraska Supreme

Court concluded:

The conduct attributed by ap} ellants to AS Mid

America the failure to protect its employees

from harassment — would be, if proved, both a

breach of the putative oral contract and a viola-

tion of federal labor law. Therefore, the focus of

the state law breach of contract action and

NLRB determinations would be the same

whether AS Mid-America acted or failed to act

such that its replacement workers were sub

jected to harassment. (App. 21-22).

In short, far from being in direct conflict with Belknap,

the Nebraska Supreme Court carefully distinguished

Belknap’s facts and applied Belknap’s holding to conclude

that the NLRA preempted Plaintiffs’ claims in this case.°

D. The Nebraska Supreme Court’s Preemption

Analysis Is Not Out-Dated

Citing to a footnote in Chief Justice Rehnquist's dis-

sent in Local 926, Int'l Union of Operating Engineers

Jones, 460 U.S. 669 (1983), Plaintiffs next argue that the

Nebraska Supreme Court’s preemption analysis is “out-

dated.” (Pet. at 15). That argument is entirely without

merit. In his Jones dissent, Chief Justice Rehnquist merely

observed that the preemption analysis set forth in Iron

> Indeed, the Nebraska Supreme Court concluded that

Plaintiffs’ fraudulent misrepresentation claim was not pre-

empted under Belknap because, unlike the breach of contract

claim, “maintaining a misrepresentation action would not

interfere with the NLRB’s determination of matters within its

jurisdiction and ...such an action is of no more than peripheral

concern to the NLRB and the federal labor law.” (App. 32).

hy

TA rT) ’ iake. |

Workers v. Perko, 373 U.S. 701 (1963), was no longer dis-

positive, because in Perko, “the mere fact that a state law

claim was based upon arguably prohibited conduct dic-

tated the conclusion that the state law claim was pre-

empted.” Jones, 460 U.S. at 685 n.2 (Rehnquist, J. dissent-

ing). Since then, the Court has emphasized that the criti-

cal inquiry in applying the Garmon rule “is whether the

controversy presented by the state court is identical with

that which could be presented to the Board.” Belknap, 463

U.S. at 510.

That is the exact analysis that the Nebraska Supreme

Court applied in this case to hold Plaintiffs’ claims pre-

empted. See App. 21-22 (“the conduct at issue and the

controversy presented is identical to that which would be

presented to the NLRB”). In fact, the Nebraska Supreme

Court does not even mention Perko in its decision. In

short, the court’s analysis is entirely consistent with cur-

rent Garmon preemption doctrine.

Plaintiffs also claim that the Nebraska Supreme

Court ignored the “overwhelming exceptions” to the Gar-

fon rule set forth in Sears and Farmer v. Carpenters, 430

U.S. 290 (1977). (Pet. at 16). That argument fundamentally

misconstrues the scope of Garmon preemption. The excep-

tions to the Garmon rule “serve only as more precise

demarcations of the scope of Garmon preemption. They

have not redefined the nature of that preemption in any

way.” International Longshoremen’s Association, AFL-CIO v.

Davis, 476 U.S. 380, 381 (1986) (emphasis added) (noting

that the rule is “[s]ubject to exception only in limited

circumstances,” Id. at 392-93); see also Brown v. Hotel &

Restaurant Employees & Bartenders Int'l Union Local 54, 468

U.S. 491, 502 (1984) (“a presumption of federal preemp-

tion applies even when the state law regulates conduct

only arguably protected by federal law” and that this

presumption “properly admits to exception when

unusually ‘deeply rooted’ local interests are at stake”)

(emphasis added).

Moreover, both Sears and Farmer are inapposite. In

Sears, “the state court action was for trespass. It chal-

lenged only the location of the Union picketing. The

unfair labor practice charge, however, would have

focused on whether the picketing had recognitional or

work reassignment objectives, issues ‘completely unre-

lated to the simple question whether a trespass had

Jones, 460 U.S. at 682-83 (citing to Sears, 436

yw

occurred

U.S. at 198).

Similarly, in Farmer, a union member brought an

action for intentional infliction of emotional distress

against the union and its officers, claiming that he was

subjected to a campaign of personal abuse and harass-

ment in addition to continued discrimination in referrals

from the hiring hall. 430 U.S. at 292. This Court held that

the NLRA did not preempt the intentional infliction

claim, because the focus of any unfair labor practice

proceeding “would be on whether the statements or con-

duct on the part of Union officials discriminated or

threatened discrimination against him in employment

referrals for reasons other than failure to pay Union

dues.” Id. at 304. By contrast, whether the union officers’

statements or conduct also caused the plaintiff emotional

distress and physical injury “would play no role in the

Board’s disposition of the case, and the Board could not

award [plaintiff] damages for pain, suffering, or medical

expenses.” I[d.°

[hus, in both Sears and Farmer, the controversies

were not identical, and preemption was unnecessary. By

contrast, as the Nebraska Supreme Court observed here,

“the focus of the state law breach of contract action and

NLRB determinations would be the same - whether AS

Mid-America acted or failed to act such that its replace-

ment workers were subjected to harassment.” (App. 22).

[herefore, the threat of creating inconsistent obligations

under state and federal law is very real. In their com-

plaints, Plaintiffs specifically contend that the Company

breached a contract and acted tortiously by, among other

things, allowing union members “to come to work wear-

ing union T-shirts,” affix union bumper stickers to their

(the union members) cars, etc. Plaintiffs seek to have a

state court jury award them damages based on these

allegedly wrongful acts. In fact, AS Mid-America would

have clearly violated federal labor law had it forbidden

or disciplined union members for wearing union T-shirts

or placing union bumper stickers on their cars. See

Escanaba Paper Co., 314 N.L.R.B. 732, 733 (1994) (employ-

ees wearing I[-shirts or buttons stating “No Scabs” pro-

tected by Section 7 of the NLRA). Avoiding this exact

type of situation is precisely the reason the Garmon doc-

trine was recognized by the United States Supreme Court,

and requires the dismissal of Plaintiffs’ claims. Therefore,

6 Significantly, the Nebraska Supreme Court did not

conclude that Plaintiffs’ intentional infliction claims in this case

were preempted, but instead held that they failed to state a

cognizable claim under state law. (App. 32-33).

lS

unlike in Sears and Farmer, the danger of creating state

law obligations which conflict with the federal scheme is

overriding, and placing the controversy solely within the

jurisdiction of the NLRB is necessary.’

Finally, Plaintiffs claim that they seek “monetary

damages which the Board cannot provide.” (Pet. at 19). In

fact, however, the Board is entitled to provide employees

with back pay relief, the very kind of monetary damages

that Plaintiffs could obtain in their breach of contract

claim. See generally 29 U.S.C. § 160. Regardless, “since

remedies form an ingredient of any integrated scheme of

regulation, to allow the State to grant a remedy here

which has been withheld from the National Labor Rela-

tions Board only accentuates the danger of conflict.” Gar

mon, 359 U.S. at 247, 79 S. Ct. at 781. See also Jones, 460

U.S. at 684, 103 S. Ct. at 1463 (rejecting plaintiff’s argu-

ment that he should be permitted to go forward in the

state court because he could be awarded punitive dam-

ages and attorneys’ fees, whereas he would be limited to

backpay if his complaint had gone forward before the

Board). Moreover, Plaintiffs had the option of seeking

broader remedies by filing suit against those they claim

7 Linn v. United Plant Guard Workers of America, Local 114,

383 U.S. 53 (1966), has no bearing on this case. In Linn, this

Court held that a state action for malicious libel in the course of

a labor dispute was not preempted, because the malicious

publication of libelous statements does not in and of itself

constitute an unfair labor practice. Id. at 63. Moreover, while

such statements arguably could constitute a violation of Section

8 of the NLRA, the Board would look only to the coercive or

misleading nature of the statements rather than their

defamatory quality. Jd. Thus, unlike here, the focus of the state

and Board proceedings would not be the same.

19

perpetrated acts of violence and intimidation against

them. Their decision to forego such suits does not exempt

them from the application of the Garmon preemption

doctrine in the lawsuit they chose to file against their

former employer.

Il. The Nebraska Supreme Court’s Conclusion That

Section 301 Pre-Empts Plaintiffs’ Third Party Bene-

ficiary Claim Is Unremarkable And In Accord With

Longstanding Supreme Court Precedent

As a second reason for granting the writ, Plaintiffs

argue that whether their breach of contract claims survive

preemption under Section 301 “is an issue which has not

yet been decided by this Court.” (Pet. at 21). To the

contrary, this Court has long held that Section 301 pre-

empts breach of contract claims arising out of a strike

settlement agreement, such as the Return to Work Resolu-

tion in this case.

Section 301 specifically vests the federal courts with

subject matter jurisdiction over “[s]uits for violation of

contracts between an employer and a labor organization

representing employees in an industry affecting com-

merce...” 29 U.S.C. § 185. To avoid the potential for

creating inconsistent obligations under state and federal

law, federal law must be applied to suits involving con-

tracts covered by Section 301. See Textile Workers Union v.

Lincoln Mills, 353 U.S. 448, 456 (1957) (“[T]he substantive

law to apply in suits under Section 301 is federal law,

which the courts must fashion from the policy of our

national labor laws.”)

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t ( ourt heid that strike ettlement agreement I

rntr + het PPT nemplover! ma ; lahor { reanizat

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tnin the 1eaning of Section 301. In LUry ( tne

mpiovyer na its union negotiated a Strike settleme

reement which ntained non-discrimination pr

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on and an arDitration provision concerning dispu

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n inder the strike settlement agreement

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>. at 20 n.4 . dispute arose under the strike settle

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ent agreement and the parties arbitrated that disput

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it 23. Subsequently, the employer refused to abide |

ie arbitration award and the union filed suit under:

2()1 ld ] . , . ha tr; t

ection 301. Id. The union argued that the strike settle

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nent agreement constituted a contract for purposes

section 1. Conversely, the employer argued that «

tain t é I yntract collective bargainin I

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Ve find, then, fron read f the wi

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Furthermore, the statute’s purpose would be

defeated by excluding such contracts from

“contracts” cognizable under § 301(a). If this

kind of strike settlement were not enforceable in

§ 301(a), responsibie and stable labor relations

would suffer, and the attainment of the labor

policy objective of minimizing disruption of

interstate commerce would be made more diffi-

cult. It is no answer that in a particular case the

agreement might be enforceable in state courts

a main goal of § 301 was precisely to end

‘checkerboard jurisdiction.’

at 27 (internal citations omitted)

Therefore, the Nebraska Supreme Court’s conclusion

that Section 301 preempted Plaintiffs’ third party bene

ficiary claims under the Return to Work Resolution

merely constituted a straightforward application of Lion

ry Goods’ holding:

In the instant case, as in Lion Dry Goods, a labo

strike ensued and a mutual agreement was

reached, intending to return working conditions

to normal. As in Lion Dry Goods, the return to

work resolution was a mutual agreement that

AS Mid-America and union members negotiated

and agreed upon, which essentiaily ended the

strike and returned working conditions to nor-

mal. Just as in Lion Dry Goods, the return to

work resolution addressed several issues signifi

cant to reestablishing and maintaining indus

trial peace, such as seniority, job classification,

and job placement. The return to work resolu-

tion also provided mechanisms for resolving

number of other issues, such as layoffs, over

]

lesa

lures, and snl

time, vacations, grievance proces

umping. (App. 25-26)

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Bradshaw, 512 U.S. 107 (1994), they contend that

Section 301’s preemption principles are limited to thi

policy of preserving the effectiveness of arbitratior

>

1uses in collective bargaining agreements. (Pet t

1-25). Thus, they argue, because they are “nonunion

mplovee vho were not parties t llecti t Tall

mpioyees who were Not partieS TO a COLleCctlvVe \arvall

igreement, their state law claims are not arbitrable

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1 snoulad be resolved undet tate law Pet {

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Plaintiffs fundamentally misunderstand the pri

ples behind Section 301 preemption. Nothing in Liva

limits the scope of Section 301 preemption to enforcemen

of arbitration provisions. Rather, Livadas re affirmed th

the preemption rule applies to assure that state laws di

not determine “questions relating to what the parties t

bor agreement agreed and what legal consequence

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