Opposition Brief — Medrano v. Excel Corp.

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(9) FILED

No. 92-1937 ; SUL 8 1993

: OLERK

In The

Supreme Court of the United States

October Term, 1993

MIGUEL MEDRANO,

Petitioner,

EXCEL CORPORATION,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Rosert M. CoHAN

(Counsel of Record)

SusAN J. SANDIDGE

Linpa S. ALTHOFF

SUZANNE R. WESTERHEIM

COHAN, SIMPSON, COWLISHAW,

ARANZA & Wutrr, L.L.P.

2700 One Dallas Centre

350 North St. Paul Street

Dallas, Texas 75201

(214) 754-0100

Rosert L. Craic, Jr.

Carr, Fouts, Hunt, Craic,

TERRILL & Worre, L.L.P.

1001 Texas Avenue

Lubbock, Texas 79401

(806) 765-7491

July, 1993 Attorneys for Respondent

QUESTION PRESENTED

Is an employee’s state-law claim alleging retaliatory

discharge for settling a workers’ compensation claim pre-

empted by Section 301 of the Labor Management Rela-

tions Act of 1947, 29 U.S.C. § 185, when the state-law

claim is founded on the allegation that the provision of

the collective bargaining agreement under which the

employee was terminated is itself illegal and discrimina-

tory, and when the alleged discrimination is a deprivation

of rights found only in another provision of the collective

bargaining agreement?

LISTING OF PARTIES IN THE COURT BELOW

The names of all parties to the proceeding in the

Court of Appeals appear in the caption of the case. Excel

Corporation is a wholly-owned subsidiary of Cargill,

Incorporated.

TABLE OF CONTENTS

EIN eee ee eee Te

m. ewmcweannee DOIOW................

SUMMARY OF ARGUMENT............

ARGUMENT AND AUTHORITIES......

A. The Court of Appeals Correctly

QUESTION PRESENTED................

LISTING OF PARTIES IN THE COURT BELOW....

eee 004088680

8:8 .6 84 6 8 6 29

“se ee ee ewe

Stee O64 8 HO DO

Held That

Petitioner’s Claim Falls Within The Preemptive

poope OF Section S01 .............

1. Respondent’s liability is contingent upon a

determination that the CBA violates state

Oe ee

2 82S & 4 6 6 & Se

2. Section 11(F) does not, on its face, violate

state law; thus, it must be interpreted ...

3. Petitioner’s discrimination claim is actu-

ally a request for enforcement of another

B. The Court of Appeals’ Decision Does Not Insu-

late Labor Contracts From Review

C. This Case Is Not An Appropriate

ili

Vehicle for

Revisiting the Scope of Federal Preemption.. 21

en eee

TABLE OF AUTHORITIES

Page

Cases

Ackley v. Local Union 337, 910 F.2d 1295 (6th Cir.

RAN Ce rg reer reer Pre rr ern prt 20

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985) passim

Calvillo v. Excel Corp., No. CA5-91-075-C (N.D.

MS ace eee Cie ke Ue eK dd ds ahhthodsae eae b's 6

Deboles v. Trans World Airlines, Inc., 552 F.2d 1005

(3d Cir.), cert. denied, 434 U.S. 837 (1977).......... 20

Del Costello v. International Bhd. of Teamsters, 462

ee ee I ohh aes Geka band soko hawae sea eee 5 = 20

Eldridge v. Felec Services, Inc., 920 F.2d 1434 (9th

EE b50 ey Okawks ¥de Ren ehy Cee rekenhenscs ean 22

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953) ...... 21

Gardiner v. Sea-Land Service, Inc., 786 F.2d 943 (9th

EE cA As Rewer: end be eee es SoA te Shep eens hss 15

Harris v. American Red Cross, 752 F. Supp. 737

A I 0d ew on be ea ehwks 0k HAR ERE A Nes o> 18

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399

SNES ei ohit eae be Dadian en bah ak 4 Oe oe Ae ew passim

Malden Mills v. ILGWU Nat'l Retirement Fund, 766

Se ee ee |) eee eee 21

Medrano v. Excel Corp., 985 F.2d 230 (5th Cir. 1993)

LeVETREME ERD TEE ERLE OEE ET Coreen 5, Ti, 12%

Muschany v. United States, 324 U.S. 49 (1945)........ 21

National Labor Relations Board v. Allis-Chalmers

Wife. Co., FOG US. B75 Ci9GF evs nc eceveccnsvavecs 15

TABLE OF AUTHORITIES - Continued

Page

Pope v. MCI Telecommunications Corp., 937 F.2d 258

(5th Cir. 1991), cert. denied, 112 S.Ct. 1956 (1992) .... 18

Swearingen v. Owens-Corning Fiberglas Corp., 968

Pal Se COU GA FG: on cece vacncnesaneeeauen 14, 18

Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962) ...... 10

Textile Workers Union v. Lincoln Mills, 353 U.S. 448

3 nr pre aogier ren et Laces 10, 20

United Paperworkers’ Int'l Union v. Misco, Inc., 484

OS. FR CR ie voce nsassccnen shakes cieoeeeeee 21

United Steel Workers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960)................ 15

Voce @. Sipes, FOR AS. UF1: Ce aoc vic civ caenawecuas 20

W. R. Grace & Co. v. Local Union 759, 461 U.S. 757

NIE iv sevens caxckidiee te ee 21

Wells v. General Motors Corp., 881 F.2d 166 (5th Cir.

1989), cert. denied, 495 U.S. 923 (1990)............. 11

STATUTES AND RULES

Labor Management Relations Act, Section 301,

Pe ae OE ooo as cp se cers cise hea ee 1, 9, 10

National Labor Relations Act, Section 9(a),

pe ee errr rr Te rer er rrr yr ree 20

Rules of the Supreme Court of the United States

ge. Sa ee ay rere eters aig eae ee 1

a gS Peery eee oer Oe ery SN 3

ee ee Re rer Pert aer r 3

TABLE OF AUTHORITIES - Continued

Rules of the Texas Industrial Accident Board

oa sg adie xb o0-dé eae esevessndvaveses 16

Texas Workers’ Compensation Act,

Tex. Rev. Civ. Stat. Ann. art. 8307c (Vernon

enn ee 1, 6, 12, 14, 20

Tex. Rev. Civ. Stat. Ann. art. 8308-4.33(c) (Ver-

I SUED eo Soa a kos nb esacessecacsencnescsssee 16

MISCELLANEOUS

Stone, The Legacy of Industrial Pluralism: The Ten-

sion Between Individual Employment Rights and

the New Deal Collective Bargaining System, 59 U.

er ree re 22

No. 92-1937

In The

Supreme Court of the United States

October Term, 1993

MIGUEL MEDRANO,

Petitioner,

EXCEL CORPORATION,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

Pursuant to Rule 15 of the rules of this Court, respon-

dent Excel Corporation submits this brief in opposition to

petitioner Miguel Medrano’s Petition for a Writ of Cer-

tiorari to the United States Court of Appeals for the Fifth

Circuit (the “Petition”). The opinion of the Court of

Appeals is reported at 985 F.2d 230 and is reproduced in

the appendix to the Petition. The relevant statutes, Sec-

tion 301 of the Labor Management Relations Act of 1947,

29 U.S.C. § 185(a), and Article 8307c of the Texas Revised

Civil Statutes, are set forth in the Petition, at 2-3.

COLLECTIVE BARGAINING AGREEMENT

Petitioner’s employment was governed by a collec-

tive bargaining agreement between Excel Corporation,

Plainview, Texas, and United Food and Commercial

Workers District Local #540 (the “CBA”). Article XVII,

Section 11, of the CBA provides as follows:

Section 11: An employee shall lose his seniority

for the following reasons:

A. Voluntary quitting (if an employee is absent

from work three (3) or more consecutive

days without notifying the Company or

without good cause, he will be deemed to

have voluntarily terminated his employ-

ment).

B. Discharge for cause.

C. Failing to report at the expiration of a leave

of absence without good cause.

D. Absence from work for any reason for a

period of more than eighteen (18) months.

E. Employees recalled from layoff under the

provisions of Section 4 (G) will have five (5)

working days to return to work after being

notified by certified letter or telegram

return receipt requested, sent to their last

known address. Employees failing to report

within five (5) working days of the date the

letter or telegram is sent will lose their

seniority. An additional five (5) days will be

granted if requested by the employee

within the first five (5) days.

F. Full settlement with an employee for a dis-

ability that the Company can not accommo-

date.

STATEMENT OF THE CASE

Pursuant to Rules 15.1 and 24.2 of the rules of this

Court, respondent respectfully points out the following

additions and corrections to petitioner’s statement of the

case.

A. Facts.

Respondent submits the following chronology, which

it believes provides a more accurate and complete sum-

mary of petitioner’s pertinent employment and injury

history than that set forth in the Petition.

June 1989

November 3, 1989 \

November 6, 1989

November 21, 1989

November 1989

Petitioner first employed by

respondent. Statement of Facts

(“S.F.”)! at 240.

Petitioner injured his left wrist.

S.F. at 246.

Petitioner injured his right arm

and shoulder. S.F. at 246.

Petitioner reinjured his right

arm and shoulder. /d.

Following his injuries, peti-

tioner stopped working, filed

two workers’ compensation

claims, and collected weekly

compensation benefits. S.F. at

247, 253.

1 The Statement of Facts (“S.F.”) is the transcript of trial

proceedings, which was filed as part of the record in the Court

of Appeals.

October 5, 1990

November 12, 1990

November 13, 1990

November 28, 1990

Petitioner returned to work

with restrictions that tempo-

rarily limited use of his wrist

and shoulder. S.F. at 247-48.

Respondent testified that it

attempted to accommodate

these restrictions by giving

petitioner the position of the

“third man” on what is ordi-

narily a two-person job. S.F. at

207-08. However, petitioner

continued to experience prob-

lems with his shoulder and

wrist. S.F. at 208.

Petitioner saw his shoulder

doctor, who gave him more

severe restrictions on use of his

shoulder and advised him that

he needed a new job, because

his old job was too stressful on

his shoulder. S.F. at 209.

Petitioner saw his wrist doctor,

who severely restricted use of

his wrists. S.F. at 209-10. The

combination of his shoulder

restrictions and his wrist

restrictions prevented peti-

tioner from performing any job

at the plant, and he was taken

off work. S.F. at 210.

Petitioner settled the two

workers’ compensation claims

in connection with his Novem-

ber 1989 injuries for a lump

sum of approximately $27,000.

S.F. at 252-53. At the time of

settlement, respondent had no

jobs available within peti-

tioner’s medical restrictions.

S.F. at 214-15.2

January 11, 1991 Respondent’s safety director

and the union steward each tes-

tified that they informed peti-

tioner on this date that he was

being discharged pursuant to

Article XVII, Section 11(F), of

the CBA. S.F. at 65, 94-95,

334-36.

January 15, 1991 Petitioner received and sought

to present to respondent mod-

ified medical restrictions. S.F. at

233.

B. Proceedings Below.

1. Petitioner’s attack on the legality of the CBA

was a novel, offensive tactic.

Petitioner states that:

Rather than waiting for respondent to put its

CBA-based defense before the jury, petitioner

met the defense head-on in his case-in-chief,

2 Petitioner’s statement that “[t]he evidence was conflict-

ing” on this point (Petition at 4) is incorrect. There was no

evidence that respondent had jobs available on the date of

settlement that could have been performed by a person with

petitioner’s medical restrictions. The Court of Appeals specifi-

cally found that, on the date of petitioner’s settlement, “there

were no jobs available at Excel that could accommodate

Medrano’s medical restrictions.” Medrano v. Excel Corp., 985 F.2d

230, 231 (Sth Cir. 1993).

arguing that respondent’s general policy regard-

ing the reinstatement of injured workers, based

on whether they demanded workers’ compensa-

tion settlement, was itself a form of unlawful

discrimination in violation of article 8307c.

Petition at 5. This statement inaccurately characterizes

petitioner’s trial strategy as an attempt at anticipatory

rebuttal to respondent’s defensive posture. Such a charac-

terization mistakenly implies that respondent’s CBA

defense was the reason the claim was preempted.

Petitioner’s argumu t that the CBA was illegal and

discriminatory was not a rebuttal position, but was in

reality a new, aggressive theory of liability. This novel

strategy had not been revealed in petitioner’s pleadings

or in discovery, and it was clearly propounded at trial to

avoid the inevitable failure of petitioner’s pleaded “pre-

text” theory of the case.

Petitioner’s case was the second of some forty com-

panion cases that were pending for trial seriatim in the

autumn of 1991. Each of those cases had been pleaded on

the theory that the plaintiff had been fired in retaliation

for filing a workers’ compensation claim and that respon-

dent’s defense of the terminations, based on various pro-

visions of the CBA, was mere pretext. The pretext theory

had proved unsuccessful just days earlier, when the first

of the companion cases, Calvillo v. Excel Corp., No.

CA5-91-075-C (N.D. Tex. 1991), which was premised on

the very same provision of the CBA, resulted in a finding

of no liability for respondent.

When he launched his attack on the CBA in voir dire

and opening statement, petitioner was responding to this

failure of his initial theory, not to respondent's consistent

defense theory. It was petitioner’s charge, in his own

words, that the CBA “was itself a form of unlawful dis-

crimination,” Petition at 5, that raised the issue requiring

preemption of this case.

2. Respondent’s actions were governed by the

CBA.

Petitioner’s statement of the case continues, stating:

On several occasions, management witnesses

were asked whether it was true that, as the CBA

seemed to state, injured workers who did not

demand settlements could take eighteen months

to return to work without losing their places in

the plant, while injured workers who did

demand such settlements would have to be able

to come back to work immediately or lose their

jobs. On each occasion, the witnesses conceded

that this was an accurate statement of manage-

ment policy, although they denied that this con-

stituted retaliation.

Petition at 5 (emphasis added). The testimony of Excel’s

management witnesses is clear and unambiguous - none

testified that the situation summarized by petitioner

above was “an accurate statement of management pol-

icy.” Instead, every management witness testified that the

CBA required termination of employees who settled

claims on the basis of disabilities that prevented them

from returning to work. See, e.g., S.F. at 46, 145. The

distinction between “management policy” and a negoti-

ated provision of the CBA is obvious and significant. This

procedure was not some arbitrary path followed by Excel

management to the detriment of its employees. On the

contrary, it was the path dictated by the representatives

of management and the Union as a result of the collective

bargaining process, representing a legitimate effort to

serve the interests of all Excel employees.

3. Respondent has not conceded that the CBA is

discriminatory.

Petitioner asserts that respondent, in its motion to

dismiss at trial and in its motion for judgment notwith-

standing the verdict, argued that petitioner’s claim was

preempted “because petitioner was attacking a discrimi-

natory policy that was reflected in a CBA.” Petition at 5-6.

Respondent has never argued — but rather has consis-

tently denied — that Article XVII, Section 11(F), is

unlawfully discriminatory.

SUMMARY OF ARGUMENT

Petitioner’s claim is clearly preempted by federal

law. The Court of Appeals correctly held that, by chal-

lenging the legality of the CBA, petitioner had brought

his claim squarely within Section 301’s preemptive scope.

This Court has addressed this issue directly, holding that

a retaliatory discharge claim must be decided under fed-

eral law if the claim requires an interpretation of a collec-

tive bargaining agreement. Here, as the Court of Appeals

found, the CBA must be construed for resolution of peti-

tioner’s state-law claim. Petitioner has asserted no basis

for respondent’s liability other than the alleged conflict

between the CBA and Texas law. However, the disputed

provision of the CBA has never been held to be unlawful,

and is not retaliatory or discriminatory on its face. Thus,

any determination of the legality of the CBA must be

governed by federal labor-law principals.

This Court’s holdings in Lingle and Allis-Chalmers, as

applied by the Court of Appeals here, will not permit

employers and unions to override state laws through

collective bargaining as petitioner claims. Federal labor

law provides an adequate remedy for such attempts. The

Court of Appeals did not hold that state-law retaliatory

discharge claims are preempted when the discharge can

be shown to be unlawful without interpretation of the

labor contract. Thus, the decision below does not compel

preemption when a collective bargaining agreement pro-

vision, on its face, violates state law. Even where, as here,

the need to interpret the collective bargaining agreement

requires preemption, the contract may be invalidated

under federal law; and state law may be employed to

guide the formulation of federal policy in the arbitral and

judicial process.

Finally, this is not an appropriate circumstance, as

petitioner posits, for this Court to “speak once more” to

the proper scope of preemption under Section 301. This

Court has directly addressed and clearly defined the

scope of preemption in cases alleging wrongful discharge

for filing a workers’ compensation claim. Further review

of this case will not assist lower courts struggling to

determine the outer boundaries of Section 301’s preemp-

tive field, because this case sits squarely at the center of

that field. This case does not raise the issue of whether a

state-law claim is preempted when the employer asserts a

defense under the collective bargaining agreement or

when the collective bargaining agreement, on its face,

violates state law. Moreover, the state-law claim asserted

here not only requires an interpretation of the CBA provi-

sion alleged to be unlawful; it also requires enforcement of

yet another CBA provision, a situation even petitioner

acknowledges to be within the preemptive field. Accord-

ingly, this case is not an appropriate vehicle for defining

the outer limits of preemption in the workers’ compensa-

tion context, much less in the broader areas suggested in

the Petition.

ARGUMENT AND AUTHORITIES

A. The Court of Appeals Correctly Held that Peti-

tioner’s Claim Falls Within the Preemptive Scope of

Section 301.

Section 301 of the Labor Management Relations Act

of 1947, 29 U.S.C. § 185 (“Section 301”) “authorizes fed-

eral courts to fashion a body of federal law for the

enforcement of collective bargaining agreements.” Textile

Workers Union v. Lincoln Mills, 353 U.S. 448, 451 (1957).

“{I]n enacting § 301 Congress intended doctrines of fed-

eral labor law uniformly to prevail over local rules.”

Teamsters v. Lucas Flour Co., 369 U.S. 95, 104 (1962). When

the resolution of a state-law claim depends upon the

analysis of a term of a collective bargaining agreement,

“the application of state law . . . is preempted [by Section

301] and federal labor-law principals - necessarily uni-

form throughout the nation - must be employed to

resolve the dispute.” Lingle v. Norge Div. of Magic Chef,

Inc., 486 U.S. 399, 406 (1988). In such a case, the “claim

must either be treated as a § 301 claim or dismissed as

preempted by federal labor-contract law.” Allis-Chalmers

Corp. v. Lueck, 471 U.S. 202, 220 (1985) (citations omitted).

To determine whether a state-law claim is preempted, it

must be determined whether evaluation of the claim “is

inextricably intertwined with consideration of the labor

contract.” Id. at 213. A state-law remedy is “independent”

of the collective bargaining agreement for Section 301

| preemption purposes if, and only if, “resolution of the

state-law claim does not require construing the collective-

bargaining agreement.” Lingle, 486 U.S. at 407. On the

other hand, Section 301 requires preemption when provi-

sions of the collective bargaining agreement “govern, or

reasonably might be construed as governing,” the claim.

Wells v. General Motors Corp., 881 F.2d 166, 174 (5th Cir.

1989), cert. denied, 495 U.S. 923 (1990).

From these tenets, a single governing principle

emerges: a plaintiff’s state-law retaliatory discharge claim

will be preempted where resolution of the case depends

upon interpretation of a term of the collective bargaining

agreement. See Lingle, 486 U.S. at 407. This straightfor-

ward principle governed the Court of Appeals’ review of

this case. See Medrano v. Excel Corp., 985 F.2d 230, 234 (5th

Cir. 1993). It also provides the standard for analysis of the

single question relevant to petitioner’s claim before this

Court: does petitioner’s allegation that the relevant provi-

sion of the CBA is itself unlawful depend upon inter-

pretation of a term of the CBA? Under the facts of this

case, the correct answer, and the answer reached by the

Court of Appeals, is that it does.

It is undisputed that petitioner was discharged pur-

suant to a provision of the CBA, and petitioner offered no

basis for a finding of liability other than the alleged

illegality of the CBA provision itself. However, the dis-

puted CBA provision has never been determined to be

unlawful and is not, on its face, violative of state law.

Consequently, interpretation of the CBA is essential to a

resolution of petitioner’s claim.

1. Respondent's liability is contingent upon a

determination that the CBA violates state law.

Although his pleadings accused Excel of using the

CBA as a “pretext” for discharging him in retaliation for

exercising his rights under Texas workers’ compensation

laws (see Second Amended Complaint, Record at 189-92,

71 VI-VII), petitioner abandoned his pretext argument at

trial, arguing instead that Article XVII, Section 11(F), of

the CBA itself constitutes discrimination against all

employees who settle workers’ compensation claims.

Petitioner’s trial attorney told prospective jurors dur-

ing voir dire that they would “be asked to consider

whether this rule [Article XVII, Section 11(F)] violates the

law” and whether the fact that the provision was con-

tained in a “union contract” would keep them “from

fairly considering the issue at hand, which is whether that

rule discriminates against employees that settle claims.”

S.F. at 8-9, quoted by the Court of Appeals, Medrano, 985

F.2d at 234 n.4 (emphasis by Court of Appeals). Peti-

tioner’s attack on the CBA continued throughout trial

and during closing argument. As the Court of Appeals

concluded, “Medrano was not challenging the actions of

his employers under section 8307c; instead, he was chal-

lenging a provision of the CBA that was applied by his

employer.” Id. at 234.

ena

Petitioner does not dispute that conclusion. More-

over, he no longer disputes the Court of Appeals’ conclu-

sion that respondent “faithfully applied” the CBA and

that Section 11(F) was “the basis for [petitioner’s] termi-

nation.” Id. Not a single witness, including petitioner

himself, testified that he was discharged in retaliation for

settling a workers’ compensation claim, and no document

supports that conclusion. Petitioner simply offered no

evidence to support a finding of discrimination apart

from the allegedly illegal and discriminatory CBA provi-

sion.

2. Section 11(F) does not, on its face, violate state

law; thus, it must be interpreted.

Article XVII, Section 11(F), of the CBA provides that

an employee “shall lose his seniority for . . . full settle-

ment . . . for a disability that the Company can not

accommodate.” Record at 359. Petitioner assumes that

Section 11(F) is unlawfully discriminatory under Texas

workers’ compensation law, and complains that an illegal

contract should not be permitted to preempt his state-law

claim. Respondent acknowledges that “§ 301 does not

grant the parties to a collective-bargaining agreement the

ability to contract for what is illegal under state law.”

Allis-Chalmers, 471 U.S. at 212. But no determination has

ever been made that Section 11(F) is discriminatory or

retaliatory or unlawful; and no such determination can be

made from the face of the CBA.

Petitioner offered no evidence that Section 11(F) had

a retaliatory purpose. Indeed, the undisputed testimony

was to the contrary. S.F. at 408-09, 415-16. The trial court

was not asked to make a determination that, as a matter

of law, the provision was unlawful or discriminatory, nor

has any other tribunal made such a finding.

Petitioner argues that the effect of Section 11(F),

when applied in conjunction with Section 11(D), is to

treat employees who settle their compensation claims for

a lump sum differently from those who do not settle their

claims, but continue to collect weekly workers’ compen-

sation benefits. Those who do not settle claims are

allowed 18 months to recuperate, while those who accept

a full settlement of their claims must be ready to return to

work based on their medical status at the time of settle-

ment. Petition at 4, 5. Not every difference in treatment,

however, is an unlawful discrimination.

Petitioner’s claim does not fall into one of the four

categories proscribed by article 8307c. Article 8307c pro-

hibits an employer only from discharging or otherwise

discriminating against an employee

because the employee has in good faith [1] filed

a claim, [2] hired a lawyer to represent him in a

claim, [3] instituted, or caused to be instituted,

in good faith, any proceeding under the Texas

Workman’s Compensation Act, or [4] has testi-

fied or is about to testify in any such proceed-

ing.

Tex. Rev. Civ. Stat. Ann. art. 8307c, Section 1 (Vernon

Supp. 1993). “Unless one of the four specific circum-

stances listed in article 8307c motivated the employer in

discharging or discriminating against an employee, that

employee cannot prevail in an action based on article

8307c.” Swearingen v. Owens-Corning Fiberglas Corp., 968

F.2d 559, 563 (5th Cir. 1992). Section 11(F) does not deal

directly or indirectly with any of these acts. As the Court

of Appeals made clear, petitioner alleged that respondent

“discriminated against him because he settled a workers’

compensation claim, not because he filed one.” Medrano,

985 F.2d at 233 (emphasis in original).

Here, the alleged discrimination is between two sets

of employees, each of which is collecting workers’ com-

pensation benefits. Employees in one set are collecting

weekly benefits while restricted from working; the others

have settled their claims for lump sums in lieu of contin-

ued weekly benefits. Respondent submits that the CBA,

including Section 11(F), which was negotiated between

itself and the union representing its employees, fairly

adjusts the interests of all employees and is neither retal-

iatory nor discriminatory.*

This can be demonstrated by the example of peti-

tioner himself. Petitioner had been receiving benefits of

$184 per week since November 1989. S.F. at 253. On

3 “The collective agreement covers the whole employment

relationship. It calls into being a new common law of a particu-

lar industry or of a particular plant.” United Steel Workers of

America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578-79

(1960). Our national labor policy is built on the belief that, by

pooling their economic strength and bargaining as a group,

workers can improve their conditions according to the group’s

priorities. National Labor Relations Board v. Allis-Chalmers Mfg.

Co., 388 U.S. 175, 180 (1967). With this policy as a background, it

is important to consider the agreement as a package, refined

through the give and take process of bargaining to serve both

sides. Thus, no single provision should be dismissed as inade-

quate without considering the fairness of the whole and the

offsetting advantages gained through other provisions. See Gar-

diner v. Sea-Land Service, Inc., 786 F.2d 943, 948-49 (9th Cir. 1986).

November 28, 1990, however, he settled his hand and

shoulder claims for a total of $27,000. S.F. at 253. This

amount is equivalent to about three years of weekly

benefits. Because settlements ordinarily are made when

an employee has reached “maximum recovery,”* the rea-

sonable expectation would have been for petitioner’s dis-

ability to have continued long past the time his

employment would have terminated under the 18-month

provision of the CBA. If that expectation had been ful-

filled, petitioner and his counterpart collecting weekly

benefits (hereinafter “Employee W”) would have essen-

tially equal overall benefits and income from Excel.

In reality, however, the medical prognosis on which

petitioner settled his claim turned out to be drastically

inaccurate, and, within six weeks from the date of his

settlement, he was released to return to work with mini-

mal restrictions. Under Section 11(F), petitioner was dis-

charged based on his disability at the time of settlement.

Thus, petitioner was left with his $27,000 and the choice

of re-applying at Excel (see S.F. at 414-15), seeking work

elsewhere, or taking a year and a half or so to consider

4 Prior to January 1, 1991, the general rule was that an

employee was required to have achieved maximum recovery

before the Industrial Accident Board would approve the settle-

ment of his claim. See Industrial Accident Board Rule 55.15

(1990) (compromise settlement agreement must state that “the

employee has achieved maximum recovery, or that other good

reason exists for settlement prior to maximum recovery”). Thus,

settling employees have (or at least claim to have) permanent

disabilities. This general rule is now an absolute rule. The Texas

Workers’ Compensation Act, which became effective January 1,

1991, flatly prohibits any settlement “before the employee

reaches maximum medical improvement.” Tex. Rev. Civ. Stat.

Ann. art. 8308-4.33(c) (Vernon Supp. 1993).

— |

his options.> If Employee W had been released to return

to work as petitioner was, he would have had his job at

Excel, but only about $1,100 in weekly benefits from the

date of petitioner’s settlement until the date he was able

to return to work. On the other hand, if Section 11(F) had

not been in effect, and both petitioner and Employee W

had gone back to work in January, 1991, it is obvious that

petitioner would have been some $26,000 better off than

Employee W, based on petitioner’s inaccurate medical

diagnosis.

Respondent believes that Section 11(F) constitutes a

fair mechanism for resolving the status of employees who

have no reasonable prospect of being physically able to

return to work. Respondent submits that this provision

does not discriminate against any employee for pursuing

workers’ compensation benefits in good faith; rather, it

has the effect of leveling the field between employees

who choose to or who must pursue workers’ compensa-

tion benefits on a weekly basis and those who elect to

settle their claims for a lump sum. Respondent acknowl-

edges that reasonable minds may differ as to whether

Section 11(F) constitutes the most desirable approach to

the issues it covers. However, because the provision can-

not be said to be discriminatory or retaliatory — or con-

trary to state law - on its face, an employee who would

challenge its validity must necessarily seek construction

and interpretation of the provision itself, and possibly of

its relationship with other provisions of the CBA.

> Petitioner’s settlement check was equivalent to about 18

months’ pay at Excel.

—

3. Petitioner’s discrimination claim is actually a

request for enforcement of another CBA provi-

sion.

Although petitioner argues in conclusory terms that

Section 11(F) is unlawful, he is in fact seeking the most

intricate CBA interpretation. Moreover, by relying on the

interrelationship between Sections 11(F) and 11(D) to

support his discrimination claim, he is effectively asking

for enforcement of Section 11(D). Article XVII, Section

11(D), of the CBA authorizes respondent to discharge

employees for “[a]bsence from work for any reason for a

period of more than eighteen (18) months.” Record at 359.

Petitioner states that “the combined effect of these two

provisions” was to allow recipients of weekly compensa-

tion benefits eighteen months to recover, but to require

those who obtained lump sum settlements to be ready to

work immediately.

The CBA can be the only basis for petitioner’s claim

that he (and other settling employees) were discriminated

against by not being given eighteen months to recover.

Texas law does not require that an employee with a work-

related injury be given any particular amount of time to

recover before his employer may lawfully terminate him.

See Pope v. MCI Telecommunications Corp., 937 F.2d 258 (5th

Cir. 1991), cert. denied, 112 S.Ct. 1956 (1992) (42 days);

Swearingen, 968 F.2d 559 (24 months). See generally Harris

v. American Red Cross, 752 F.Supp. 737, 740 (W.D. Tex.

1990) (“Texas state courts have consistently found that an

employee with a work-related injury may be lawfully

terminated”).

at ae

Petitioner himself concedes that all claims seeking

enforcement of a collective bargaining agreement are pre-

empted by Section 301, even if the plaintiff purports to

bring the claim under state law. Petition at 7. Given his

reliance on Section 11(D), that concession may be suffi-

cient to resolve this case.®

B. The Court of Appeals’ Decision Does Not Insulate

Labor Contracts from Review.

Petitioner complains that an employer and a union

will “be able to insulate [themselves] from review under

state law,” Petition at 12, because under the decision

below, “there is no forum to which an employee may

bring his claim that the CBA violates state law,” Petition

at 9. Petitioner does not and cannot cite any authority for

this proposition, for it is simply untrue. It is true that,

when an employer and a labor union negotiate an agree-

ment and when an employee’s claim requires interpreta-

tion of the agreement, state law may be applied only in

the context of federal labor policy. Federal labor law,

“necessarily uniform throughout the nation,” is the

proper standard by which terms in a collective bargaining

agreement should be judged. See Lingle, 486 U.S. at 406.

This does not mean that employees are left without a

6 Furthermore, this Court has never limited the scope of

Section 301 preemption to contract enforcement, but rather has

specifically stated that “the preemptive effect of § 301 must

extend beyond suits alleging contract violations.” Allis-

Chalmers, 471 U.S. at 210. More recently, the Court affirmed that

application of state law is preempted “if such application

requires the interpretation of a collective-bargaining agree-

ment.” Lingle, 486 U.S. at 413.

remedy. The union and the employer cannot insulate

themselves from review under federal law; and state law

may be consulted in the formulation of federal law.

An employee may raise the concerns expressed in

statutes such as article 8307c in a suit filed either under

Section 301 or under Section 9(a) of the National Labor

Relations Act, 29 U.S.C. § 159(a). Although state law will

not govern the decision, it may be considered and, where

appropriate, incorporated into federal law. Textile Workers

Union v. Lincoln Mills, 353 U.S. at 457 (“state law, if

compatible with the purpose of Section 301, may be

resorted to in order to find the rule that will best effectu-

ate the federal policy”).

Under Section 9(a) of the National Labor Relations

Act, a union has the duty to represent all members of the

bargaining unit in the negotiation, administration and

enforcement of the collective bargaining agreement

“without hostility or discrimination toward any, to exer-

cise its discretion with complete good faith and honesty,

and to avoid arbitrary conduct.” Vaca v. Sipes, 386 U.S.

171, 177 (1967); Deboles v. Trans World Airlines, Inc., 552

F.2d 1005, 1013-14 (3d Cir.), cert. denied, 434 U.S. 837

(1977); see 29 U.S.C. § 159(a). This duty has been implied

as a corollary to the union’s statutory role as exclusive

representative of the bargaining unit. Del Costello v. Inter-

national Bhd. of Teamsters, 462 U.S. 151, 164 & n.14 (1983).

Federal courts have jurisdiction over cases alleging

breach of the union’s duty of fair representation arising

out of negotiation of a collective bargaining agreement,

including, as would be the case here, alleged discrimina-

tion in the negotiation of seniority provisions. Ackley v.

Local Union 337, 910 F.2d 1295, 1302 (6th Cir. 1990). See

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953); Deboles, 552

F.2d 1005.

Furthermore, courts will not enforce a term of a

collective bargaining agreement that violates public pol-

icy. W. R. Grace & Co. v. Local Union 759, 461 U.S. 757, 766

(1983). “Such a public policy, however, must be well

defined and dominant, and is to be ascertained ‘by refer-

ence to the laws and legal precedents and not from gen-

eral considerations of supposed public interests.’ ” Id.

(quoting Muschany v. United States, 324 U.S. 49, 66 (1945)).

Whether a term of a collective bargaining agreement vio-

lates public policy is a matter of federal law for the court

to determine. Malden Mills v. ILGWU Nat'l Retirement

Fund, 766 F. Supp. 1202, 1209-10 (D. Mass. 1991) (citing

United Paperworkers’ Int'l Union v. Misco, Inc., 484 U.S. 29,

43 (1987); W. R. Grace, 461 U.S. at 766). This issue could

arise in a variety of contexts under Section 301, including

a suit by the employer to enforce the contract provision

and a suit by the employee challenging his discharge

under the provision.

C. This Case Is Not An Appropriate Vehicle for

Revisiting the Scope of Federal Preemption.

In the evolution of Section 301 preemption doctrine,

this Court has generally given Section 301 a broad pre-

emptive scope. See, e.g., Allis-Chalmers, 471 U.S. 202; Lucas

Flour Co., 369 U.S. 95. Petitioner maintains that, despite

the guidance provided by this Court in Lingle and Allis-

Chalmers, the lower courts are in broad disarray in deter-

mining when state-law claims are or are not preempted.

See Petition at 13-17. A closer analysis of the cases reveals

that petitioner’s overbroad statement relies on lower

court cases grappling with issues at the outer boundaries

of the preemption field. In so doing, petitioner admit-

tedly focuses on issues not raised in this case and ignores

the fact that this case fits squarely within the definition of

a preempted claim, i.e., one whose resolution requires

interpretation of a term of a collective bargaining agree-

ment. Accordingly, this case is not an appropriate vehicle

for defining the outer limits of preemption in the

workers’ compensation context, much less in the broader

areas suggested in the Petition.

Like this Court, lower federal courts have shown a

strong tendency, both before and after Lingle, to find

unionized workers’ state-law claims preempted. See

Stone, The Legacy of Industrial Pluralism: The Tension

Between Individual Employment Rights and the New Deal

Collective Bargaining System, 59 U. Chi. L. Rev. 575, 606-07

(1992) (survey of recent preemption cases reveals broad

preemption of unionized workers’ claims). The pre-Lin-

gle, lower court cases raised by petitioner are inapposite.

See Petition at 13-14. The post-Lingle cases, with one

exception, do not address preemption as it relates to a

claim of retaliatory discharge in the workers’ compensa-

tion context. See id. at 14-16, and cases cited therein. The

one case cited by petitioner that does allege retaliatory

discharge for filing a workers’ compensation claim is

Eldridge v. Felec Services, Inc., 920 F.2d 1434 (9th Cir. 1990).

The court in Eldridge evidenced no confusion when, rely-

ing heavily on Lingle and Alaska law, it concluded that

the claim for breach of the implied covenant of good faith

and fair dealing was not preempted. The Eldridge court

did not address preemption in the context of an offensive

attack on the legality of the labor contract.

Almost all of the remaining cases cited by petitioner

to demonstrate lower court confusion and disarray

address issues at the outer parameters of the preemptive

field. This case cannot assist lower courts that allegedly

continue to grapple with the question of preemption

when the collective bargaining agreement is raised as a

defense to an otherwise independent state-law claim.

Petition at 14-15. In this case, the CBA was raised offen-

sively, not defensively. Similarly, this case will not help

resolve the question of whether a claim of discharge

under a clearly discriminatory labor contract is pre-

empted. In this case, the challenged CBA provision is not

discriminatory or retaliatory on its face, and has never

been held to be discriminatory or retaliatory. Petitioner’s

claim is unique. Petitioner alleges that respondent - by

applying a specific provision of the CBA - discriminated

against him because he settled a workers’ compensation

claim not because he filed a claim, hired a lawyer, insti-

tuted a proceeding, or testified. What is disputed is

whether the provision itself was discriminatory or retalia-

tory and, therefore, unlike the agreement in Lingle, this

CBA must be construed to resolve the claim. Moreover,

the state-law claim asserted here requires not only an

interpretation of the CBA provision alleged to be unlaw-

ful, but also enforcement of yet another CBA provision.

Under Lingle and its predecessors, petitioner’s claim is

clearly preempted.

Even petitioner admits that “the broader questions

identified [in the Petition] are not squarely presented

here,” and he does “not suggest that this is the right case

in which to resolve all of them.” Petition at 16. If confu-

sion exists in the area of preemption law, this case is not

the right vehicle for this Court to revisit the issue. Further

review of this case would not be likely to assist lower

courts that have difficulty determining the outer bound-

aries of the preemption field, because this case fits

squarely within the center of that field.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,