# Opposition Brief — Foreman v. AS Mid-America, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1031%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1999 - **Citation:** 526 U.S. 1017 ## Text Shh ria i preme Court of the Unit In The October Term, 1998 ted Petition For Writ Of Certiora lo The Nebraska Supreme Court + IPPPOSTTION TO PETITION FOR OF CERTIORARI yv i AN Iter ES $25 eae ha ipa et 5 A I BRR Ta) * " —~ rc m4 + — d Bi ims breach of ,eturn t ny s alleged promises of permanent e | i] ase \VOILVII { ro ) > ) r y m+ rit 1 appl i1t110n OF federal preemption | PI t ' aad irtes petitioners (collectively, “Plaintiff : ) ] ] A ploye of Respondent AS Mid-Amer: ; 1l-America or the ‘(¢ ompany no wor pany during a strike in 1993. They filed AAsA Am ri : ol cy "oy * rt + +} { VI1G LITLE TICaA SCCKINS recovery rO! eat: , 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) i rights under a strike settlement agreement 0 Work Resolution.” The SECC ond rts a breach of an oral contract based on issment-free workplace The thir fan implied unilateral nt based on AS Mid-Americ:; 1s Rules Or iffs’ fourth and fifth causes of a | , } ‘7 sai + ror "or %et y ’ ) frauduient misrepresentation na intent ] | f emotional distress respectively. |] ( ror tost r ¢ ] ( rut l lal aistre \ ‘ Vlid Amer’! f ] fr Flaintiff Claims, on ti round that \ | ) = reempte 1 by the National Labor Relat DA 2 Cans : ) ‘ T } N NI NRA i and by YC CTIOI \ of the Labor Mar ; ’ A rn A elations Act (“Section 30 \S Mid-Ameri 17 1 +} Tt Pp] wrtitt | } } , r ‘ . , iu til ili titi ( | I ) ate IITION FOR CERTIO narassmen he tT ciple ire rorn In ed fé ult a i] ( np I nt directe wsult t cause vy benef alled tl Of | t} the ( ment I | f + nt 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), | | i 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 i ind/or the condonation of the acts committed by union \ 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.”) ~ ; } , ~ 40 | My es rT { : i j ‘ : j t ( ourt heid that strike ettlement agreement I rntr + het PPT nemplover! ma ; lahor { reanizat i to 4 ¥ it it Ait i y Ai’ 4 cat << | aa: i 7 ‘ 4 y J } tnin the 1eaning of Section 301. In LUry ( tne mpiovyer na its union negotiated a Strike settleme reement which ntained non-discrimination pr , | 1 rhitrat . rT n nererninog ] m11t on and an arDitration provision concerning dispu | 4] , ' n inder the strike settlement agreement ¢ ) { A > 7 } ee | . 4 >. at 20 n.4 . dispute arose under the strike settle : eer ioe Uae ae ee | ee ent agreement and the parties arbitrated that disput a } a A 10 } 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 — . . : 7. . ‘ . - nent agreement constituted a contract for purposes section 1. Conversely, the employer argued that « tain t é I yntract collective bargainin I P| f ‘ ‘ ‘ ECT - 4 ‘ ar } 4 ] f | Ve find, then, fron read f the wi te latior 1 in cor ,] ‘ A } ] ’ } ’ - , lor [ ii¢ sla it¢ ‘ Oi ( i l i ¢ Cel 1} | Tt rrye Te. | pased IDOI thy ¢ ( ‘ { 4 a ott - ent : f NI 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) > / , J o/ ” , ; = a +~ ° x — > , , r he > . ee 4 ——-.. - . e . ~ a — ~ . “ c me = > ; . - > b - = fy oie 2 ‘ - : ~ , 4} J 4 , + 7. P ae a —~ i I ; P - 2 “ - U - S 3 is ~ 4 , ~ r + _—~ e ie ve ra - — § . — ~~ Ss v aioe ae " . - f , - p ~~ = me J J , > + iJ 1 — 4 - 4 Aut + f ~ 1 - / : J Pa J ' , 4 oo > ; 7 - > - . ‘ > n 4 - f ¥ J “ z . “ - —_ , U 1 J +- ev eo" c > - = ™ a b ~ ~ — - J - r -- — “ Sf “ > aa A 1 > © > = a - + r s _ , < - ) , . > _ - < . / . 5 ‘ 4 , 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 ’ } ) } | " 1 snoulad be resolved undet tate law Pet { 1 } , : , 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 , ' ’ , { ‘ ee ' ere intended to tlow from breaches of that agreeme! . ee Ee ¢ Bb. » } ; 1+ das, 512 U.S. at 12. , (internal citations omiutte : , , ’ + ' us, Plaintiff status aS NONUNION MembDerss 1S Iirrels I , th NMreemption analveis< ther t j th , } , ( itt preeir} CLON anal VSIS ratiiel l iS Lilé i Kul ; } { | . yh t +} ; claim, as ‘independent’ of rights under the collect , ;, ¥ . , | raining agreement that decides whether | e of action ma\ oO forward { mnh \aded ' bene bt . ¢ i | ‘ if i t ] = +, tf . rn ’ } ] +} | ] | endant nad willfully failed to p ner [ mpt l ince, in violation of California State iw. ins ( urt { ' ; it there wa 1ispute over the amount of the penalt t th ry ntiftf Id kh intitle s+ 7 Tt retor ‘ he pialn I lid De en eda i } I nere d the« >in ple 1eed to reter t¢ I irgained-for Vare r te 1 1? mt boy c thy< ryé rif tne | + é r ro ' T ‘ } é rie + + +} ‘ YY + +} 7 , ' , ; ¥ »' C | Ly ist Mo 1] ( ON (¢ LUSION --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1031%3A2. Public record. Not legal advice.