Petition for Writ of Certiorari — Hussmann Corp. v. Cook

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IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1993

HUSSMANN CORPORATION,

Petitioner,

VS.

ROSETTA Cook,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MISSOURI

MakrK J. BREMER

Counsel of Record

REBECCA S. STITH

KOHN, SHANDS, ELBERT,

GIANOULAKIS & GILJUM

One Mercantile Center

24th Floor

St. Louis, Missouri 63101

(314) 241-3963

Counsel for Petitioner

St. Louis Law Printing,Inc. 13307ManchesterRd. St Louis,MO 63131 314-231-4477

QUESTIONS PRESENTED

1. Is a union employee’s state-law claim for workers’ com-

pensation retaliatory discharge “independent” of the governing

collective bargaining agreement and therefore not preempted by

§301 of the Labor-Management Relations Act even though the

employer’s defense is that the employee was discharged for

violating specific provisions in the labor agreement?

2. Do state-law claims for retaliatory discharge constitute a

special “exception to the reach of federal preemption” as held by

the Supreme Court of Missouri below?

3. If a right granted to a union employee by state law is not

preempted, can the right nonetheless be waived by provisions in

the collective bargaining agreement?

ae

LIST OF PARTIES

Petitioner before this Court is Hussmann Corporation (here-

inafter ““Hussmann’’), a Missouri corporation. Hussmann is a

wholly owned subsidiary of Whitman Corp., a Delaware corpo-

ration. Respondent Rosetta Cook is an individual.

— lli—

TABLE OF CONTENTS

Page

a ros casaaseipuansctbans 1

oda sconcseubibadiiasadenndnsadeniovedseeesiacen li

cna occhasishedapisasannebonnbars ill

Re PIS Oo vsvsscccsnescsccncsssconsncessssncsecsnosses Vv

i inca cesinceenrenskshuntibiavehersisavane ]

Teen rs ca esanunisintoanece |

The Constitutional and Statutory Provisions Involved...... 2

sce ssivachbsndansuesniciunnne 3

Reasons for Granting the Writ ....................cccccceeee sah 8

The Missouri Supreme Court Below Decided Im-

portant Federal Questions Concerning Preemption

Under §301 of the Labor-Management Relations

Act Which Have Not Been, But Should Be, Settled

By This Court; The Court Below Also Decided

Important Federal Questions In Conflict With De-

cisions of This Court, the Federal Courts of Appeals

and Another State Court of Last Resort ................ 8

A. The Questions Presented Are Important Both

Because Of the Proliferation of Retaliation

and Other State-Law Claims Asserted By

Union Employees In the State and Federal

Courts and Because Of the Need To Assure

That the Preeminence Of the Collective Bar-

gaining Scheme Of the Federal Labor Laws Is

Maintained and Not Eroded ....................0000. 8

ee Ov

B. Subsequent To This Court’s Seminal Deci-

sions In Lueck (1985) and Lingle (1988) the

Law Regarding §301 Preemption Has Be-

come Increasingly Unsettled; A Further Deci-

sion By This Court Is Needed ....................... 1]

C. The Case At Bar Presents Three Of the Most

Recurrent Issues Regarding §301 Preemption

and Is A Uniquely Appropriate Vehicle For

This Court To Settle and To Resolve Conflicts

and Give Guidance In This Troubled Area of

sRII sis cscnseonsintcnnahustennaddiescisiiaialitabadeiiesbabachienatnaius 14

RAINE citisin ssn oscehepiciesisenscoasidtsnehssincideaadpualiimaaibinietasnioes 23

APPENDIX

Opinion of the Supreme Court of Missouri........... A-l

Opinion of the Missouri Court of Appeals, Eastern

ITI \sciiosiccianceiatoninateennieisnainiiannmagannibisnlicasnnn A-7

TABLE OF AUTHORITIES CITED

Page(s)

Cases:

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

SENET cndaanianasidunaainapepeiicaenane 6,10-13,16,17,19,21

Bettis v. Oscar Mayer Foods Corp., 878 F.2d 192 (7th

a ED sukyncndacncunsiabimaioa ningeciebeaaeaua mis 17,18

Catepillar Inc. v. Williams, 482 U.S. 386 (1987).......... ~ 16,17

Clark v. Newport News Shipbuilding and Dry Dock Co.,

FOE Bee ee Gs REN coiccisnissninsicseamrennsnriciins 20,22

Commodore v. University Mechanical Contractors, Inc.,

ee EE * | ee ee 14

Douglas v. American Information Technologies Corp.,

0 Fe ae ee CP Ge, PED iicadioieeccccnnies 20

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

PUPM sicedepisenblacsreasicansleseashcipe cassie lua onnaemaniga baeaaacaine 18

Galvez v. Kuhn, 933 F.2d 773 (9th Cir. 1991) ...0..00.0.... 13-14

Hanks v. General Motors Corp., 859 F.2d 67 (8th Cir.

TE sicisichonncaneneaiccuasnnaianinataniliaaiaiadedigtiadmmaaton 17

Harris v. Alumax Mill Products, Inc., 897 F.2d 400 (9th

Cir.), cert. denied, 498 U.S. 835 (1990) ...........00. 20

Jackson v. Liquid Carbonic Corp., 863 F.2d 111 (1st Cir.

1988), cert. denied, 490 U.S. 1107 (1989) ......00.... 20

Jarvis v. Nobel/Sysco Food Services Co., 985 F.2d 1419

Cs HII sietccnanouiintsciasetescticdimadctacaiapeninniin 17,18,22

Johnson v. Anheuser Busch, Inc., 876 F.2d 620 (8th Cir.

a ee

Johnson v. Beatrice Foods Co., 921 F.2d 1015 (10th Cir.

Jones v. Roadway Express, Inc., 931 F.2d 1086 (Sth

Cir.), reh’g denied, 936 F.2d 789 (1991) ....... 15,18

Knafel v. Pepsi-Cola Bottlers of Akron, Inc., 899 F.2d

DE ye Gs SEE biekiideccnnsanritgiiacnearuananaiaes 15,18

Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988).............. 20,22

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

ED sibs icismnssichinasinsaedianhoheasinmasaned 6,7,9,12-18,21,22

Marshall v. TRW, Inc., 900 F.2d 1517 (10th Cir.

McCormick v. AT&T Technologies, Inc., 934 F.2d 531

(4th Cir. 1991), cert. denied, __ U.S. __, 112 S.Ct.

SEL Ae CED inciniiancaishcis seicstseacancutiunceiinananiaesuaaedadtadal 19,20,22

Medrano v. Excel Corp., 985 F.2d 230 (Sth Cir.

) save ssc nbsataianatacanbaeauliaaessaiinanman aaa aaieel oma 22

Mock v. T.G.& Y. Stores Co., 971 F.2d 522 (10th Cir.

PETIT T sccesseccnnncrsichninssstbaasaitestinansdaleadenaieleasiaia maaan ae 14,22

Nash v. AT&T Nassau Metals, 381 S.E.2d 206 (S.C.

STITT w/inisinesshienticehins benecenivediceanhadininusiaaaanaaaaaneee 15,16,20

Nelson v. Central Illinois Light Co., 878 F.2d 198 (7th

Ti IED ns'disnicndnisiesieed anda sccescheasshecekaeiaaadseriaeeue maak saces 15-17

Newberry v. Pacific Racing Assoc., 854 F.2d 1142 (9th

RA ROUIII sectshsiacussinsatncelacesiies eeadiabmanenaeeananin cea 20

Republic Steel Corp. v. Maddox, 379 U.S. 650

SITET skcsinisndh wincesncevneneiaterebibaniamanaea anneal 9-10,12

Smolarek v. Chrysler Corp., 879 F.2d 1326 (6th Cir.),

Cert. denied, 493 U.S. FIZ CIGGP) svccssesssseesessvsnns 11,15,18

— vli—

Sweeney v. Westvaco Co., 926 F.2d 29 (1st Cir.), cert.

denied, __- U.S. __, 112 S.Ct. 274 (1991) wo. 18 a

Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962)...... 10,11

| Wolfe v. Central Mine Equipment Co., 850 F.2d 469 (8th

Gps: INTUTE sseonisenianesiesdeindsinlpienacictniasneeseahiatsaelatiagasnbebiaoeobae 15

Young v. Anthony’s Fish Grottos, Inc., 830 F.2d 993 (9th

RR UID aiidicetundhicaensatannaiinisadctinnnedeniedaanaieesmaed 22

Constitutional Provisions and Statutes:

Article VI, United States Constitution ....................000. 2

Be ae RT iain snibiiccidnsinsapisnineanaiansidaaiacibdanaanion 1

29 U.S.C. § 185(a), § 301 of the Labor-Management

ER 2,5,6,10,11,13,14,16,19-21

Section 287.780 R.S.Mo. (1986)................ccccsccsssessseeee 2,5,6

Secondary Sources:

Individual Employment Rights Manual, 9A Lab. Rel.

Snes HUNT ITN cic ecslcbictnel ictllnhissohostsahdehclaci saan aieaaalloine 8

Fair Employment Practices Manual, 8A Lab. Rel. Rptr.

STUD aicehsearsdiina esicancak soba icaehceiens sila ialsmeasietaesohsneshnp sdentaceeini 8

Marcus, The Need for a New Approach to Federal

Preemption of Union Members’ State Law Claims,

PF Aan. Be EAN caiecsitisc sats csastiocehintiiasabiisiecicnisan 19

Note, Steering Away From the Arbutration Process:

Recognizing State Law Tort Actions for Unionized

Employees, 24 U.Richmond L.Rev. 233 (1990) ... 8

| senate

— vill —

Stone, The Legacy of Industrial Pluralism: The Tension

Between Individual Employment Rights and the

New Deal Collective Bargaining System, 59

Fes eT 0 WIE chaneckandtnsenecepniovnarsininanscosns 8,9,11

White, Section 301's Preemption of State Law Claims: A

Model For Analysis, 41 Ala.L.Rev. 377

EAI veh sicdectlissbeanescitenttnisiaiacomlinonadanans 9-11,13,14,16,17,19

Zablotsky, The Continuing Availability of Retaliatory

Discharge and Other State Tort Causes of Action to

Employees Covered by Collective Sargaining

Agreements, 56 Albany L.Rev. 371 (1992)........... 15

No.

IN THE

Supreme Court of the United States

OcTOBER TERM, 1993

HUSSMANN CORPORATION,

Petitioner,

VS.

ROSETTA Cook,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MISSOURI

Petitioner Hussmann Corporation respectfully prays that a

writ of certiorari issue to review the judgment of the Supreme

Court of Missouri entered April 20, 1993.

OPINIONS BELOW

The opinion of the Supreme Court of Missouri is reported at

852 S.W.2d 342 and is reprinted in the Appendix (A-1). The

opinion of the Missouri Court of Appeals is unreported and is

reprinted in the Appendix (A-7). The judgment of the Circuit

Court of St. Louis County, Missouri is unreported and is re-

printed in the Appendix (A-16).

JURISDICTION

The Supreme Court of Missouri entered its judgment on April

20, 1993. The jurisdiction of the Court is invoked under 28

U.S.C. §1257(a).

eae, a

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Consttution of the United States, Article VI, provides in

pertinent part:

This constitution and the laws of the United States which

shall be made in pursuance thereof, and all treaties made or

which shall be made under the authority of the United

States, shall be the supreme law of the land; and the judges

in every state shall be bound thereby, anything in the

constitution or laws of any state to the contrary notwith-

standing.

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

1947, 61 Stat. 156, 29 U.S.C. §185(a), provides:

Suits for violation of contracts between an employer and

a labor organization representing employees in an industry

affecting commerce as defined in this Chapter, or between

any such labor organizations, may be brought in any district

court of the United States having jurisdiction of the parties,

without respect to the amount in controversy or without

regard to the citizenship of the parties.

Missouri’s Workers’ Compensation Law, Chapter 287 of the

Revised Statutes of Missouri, provides in section 287.780:

Discrimination because of exercising compensation

rights prohibited — civil action for damages. — No

employer or agent shall discharge or in any way discrimi-

nate against any employee for exercising any of his rights

under this chapter. Any employee who has been discharged

or discriminated against shall have a civil action for dam-

ages against his employer.

§287.780 R.S.Mo.(1986).

ay, Cee

STATEMENT OF THE CASE

The Facts

Respondent Rosetta Cook was a union worker at petitioner

Hussmann’s manufacturing facility in St. Louis County, Mis-

souri (L.F.! 35 & 70). When Cook was hired by Hussmann in

1987, she stated in her employment application that she had no

back injuries or other serious pre-employment injuries (L.F. 36).

Article 9 §4 (I of the governing collective bargaining agreement

(“CBA’’) between Hussmann and the Steelworkers labor union

(of which Cook was a member) specifically calls for termination

of an employee who has falsified his or her employment appli-

cation (L.F. 35 & 46-47).?

Several years later Cook twisted her ankle while working on

the assembly line at Hussmann (L.F. 22). She filed a workers’

compensation claim against Hussmann under Missouri’s Work-

ers’ Compensation law, R.S.Mo. Ch. 287 (L.F. 22 & 70).

Hussmann filed an answer to the claim admitting the ankle injury

(L.F. 18 & 27).

At the same time she filed the claim against Hussmann, Cook

also filed a workers’ compensation claim against the State of

Missouri’s Second Injury Fund (L.F. 22; S.L.F. 1). The Second

Injury Fund claim sought enhanced recovery (from the State) on

the ground that Cook was also suffering lingering effects (“per-

manent partial disability”) from various injuries she sustained

prior to her employment with Hussmann (S.L.F. 1). The Second

Injury Fund claim was asserted on a preprinted form on the back-

side of her claim against Hussmann (S.L.F. 1).

'"LF.” refers to the Legal File below. “S.L.F.” refers to the Supplemental

Legal File.

? Article 9 §4 (I of the CBA provides that “the employee/employer

relationship shali terminate if . . . [t]he employee falsifies or omits relevant

information on his application for employment” (L.F. 46-47).

The pre-employment injuries described in Cook’s Second

Injury Fund claim were the same types of injuries Cook specifi-

cally denied having on her original application for employment

(L.F. 35-36; S.L.F. 1). Eldon Williams of Hussmann’s industrial

relations department noticed the discrepancy and suspected a

violation of Article 9 §4 {I of the CBA (L.F. 11, 14 & 19). He

called Cook to his office to inquire about the apparently false

statements in her original employment application (id.).°

Cook refused to answer Williams’ questions. She stated it was

“unethical” for him to inquire of her because she had a lawyer

and that she would not discuss anything without a union repre-

sentative present, and walked out of his office (per Cook’s

affidavit, L.F. 11). At the conclusion of a second meeting later

that day in Williams’ office, when she again refused to answer

any questions, Cook was suspended pursuant to Article 8 §4

(L.F. 12-13; see preceding footnote).

A few days later, Williams explained to Cook’s lawyer over

the phone that “we want to talk to her about her orginal

application” (per counsel’s affidavit, L.F. 19). The next day

Williams and another company official met with Cook and her

union representative (L.F. 14). Cook admits she was asked

questions “regarding my original application for employment”

(Cook’s affidavit, L.F. 14). She further admits that “I told

[Hussmann] I was not discussing the original application” (id).

As before, Cook refused to answer any questions and walked out

of the room (Cook’s affidavit, L.F. 12 & 14).

On September 5, 1991 Hussmann notified Cook she was

terminated (L.F. 15). Hussmann’s stated reasons for terminating

her were violations of Article 9 §4 I of the CBA (falsification

> Under Article 8 §4 Hussmann may investigate suspected violations of the

CBA and suspend the employee “pending investigation” (L.F. 45).

* Article 6 §2 of the CBA provides that a union representative will be

present in the meeting following an employee’s suspension (L.F. 42).

FE

— a

or omission of relevant information on employment applica-

tion), Plant Rule 1 (falsification of application or other company

records),° and Plant Rule 20 (insubordination) (L.F. 35-36).

Cook did not file a grievance and did not invoke or exhaust the

contractual grievance procedure (L.F. 36). The CBA contains a

four-step grievance procedure, where the last step is “final and

binding” arbitration (Article 7, L.F. 43-45). Under the CBA, a

discharged employee may file a grievance claiming that his

discharge was “unjust” or involved “unjustifiable Company

action” (Article 8 §§4 & 5, L.F. 45-46). As noted, however,

Cook never filed a grievance.

Procedural History

Instead of grieving under the CBA, Cook filed a lawsuit in the

Circuit Court of St. Louis County, Missouri. Her one-count

petition alleged she was discriminatorily discharged by Hussmann

in violation of R.S.Mo. §287.780 (1986) for exercising herrights

under Missouri’s Workers’ Compensation law (L.F. 70-73).

The petition alleged she was discharged “particularly because

she would not submit to private demeaning interrogation by

Eldon Williams and others” (L.F. 72).

Hussmann filed a motion for summary judgment (L.F. 30-33).

The motion contended that Cook’s state-law claim was pre-

empted by §301 of the Labor-Management Relations Act, 29

U.S.C. §185(a), and was barred by her failure to invoke or

exhaust the grievance procedure under the CBA (id). Cook

submitted an opposing affidavit stating inter alia that “I was

terminated solely and only because I refused to be interrogated

by Hussmann personnel” (L.F. 10).

* Article 4 {J of the CBA states that Hussmann has the right “to create

reasonable plant rules and compel their observance” (L.F. 41; see also Article

8 §1 [L.F. 45)).

ae Se

The Circuit Court of St. Louis County sustained Hussmann’s |

motion and entered judgment in favor of Hussmann (A-16). The |

judge found it to be “undisputed that plaintiff did not file a

grievance in accordance with the collective bargaining agree-

ment in existence at the time of the occurrence mentioned in the |

petition and the Court therefore concludes that defendant is |

entitled to judgment in its favor as a matter of law” (id.). On

Cook’s appeal, the Missouri Court of Appeals, Eastern District,

reversed (A-7). The Supreme Court of Missouri, on Hussmann’s

petition, accepted transfer (review) of the case and thereby

vacated the decision of the Court of Appeals (A-3).

On April 20, 1993, the Supreme Court of Missouri en banc, in

a unanimous decision, reversed the summary judgment which

had been entered in favor of Hussmann and remanded the case

for trial (A-1). The opinion states at the outset:

Section 287.780, R.S.Mo. 1986, protects employees

from retaliatory discharge or discrimination brought about

by the employees’ exercise of rights granted by the Work-

ers’ Compensation Act, Chapter 287, R.S.Mo. We hold

that neither federal nor Missouri law requires an employee

to invoke or exhaust the grievance procedure in a collective

bargaining agreement before filing suit under the statute.

A-1.

The opinion then proceeds to hold specifically that Cook’s

claim is not preempted by §301 of the Labor-Management

Relations Act (A-5). The court acknowledged that under this

Court’s decision in Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

220 (1985), §301 preempts any state-law claim whose resolution

requires interpretation of provisions in a collective bargaining

agreement (A-3 to 4). The Missouri court characterized this

Court’s later decision in Lingle v. Norge Division of Magic Chef,

Inc., 486 U.S. 399 (1988) — which held under rather unique

SE

ey, aes

circumstances* that a union employee’s workers’ compensation

retaliatory discharge claim was not preempted — as creating an

“exception to the reach of federal preemption in workers’ com-

pensation cases” (A-4). Disregarding the specific CBA provi-

sions Hussmann raised by way of defense as the basis for its

actions, the court held that retaliation claims are by nature

“independent” of the labor agreement and are therefore not

preempted. In this regard, the court held, lifting language from

Lingle, that whenever the “motivation of the employer” is an

element of the state-law claim, the “motive” issue can always be

“resolved without interpreting the agreement itself” (A-4, quot-

ing from Lingle, 486 U.S. at 407 & 409-410). The Missouri high

court further specifically held — reaching an issue expressly left

open by this Court in Lingle, 486 U.S. at 409 n. 9 — that the

provisions in Hussmann’s CBA “cannot be deemed to be a

waiver” of Cook’s statutory right to bring this action (A-6,

emphasis added).

Hussmann did not seek rehearing below and timely filed this

Petition For a Writ of Certiorari.

*See discussion below at pp. 12 - 13.

es

REASONS FOR GRANTING THE WRIT

The Missouri Supreme Court Below Decided Important

Federal Questions Concerning Preemption Under §301 of

the Labor-Management Relations Act Which Have Not

Been, But Should Be, Settled By This Court; The Court

Below Also Decided Important Federal Questions In Con-

flict With Decisions of This Court, the Federal Courts of

Appeals and Another State Court of Last Resort

A. The Questions Presented Are Important Both

Because Of the Proliferation of Retaliation and

Other State-Law Claims Asserted By Union Em-

ployees In the State and Federal Courts and Be-

cause Of the Need To Assure That the Preemi-

nence Of the Collective Bargaining Scheme Of the

Federal Labor Laws Is Maintained and Not Eroded

Twenty-two states now recognize a cause of action for work-

ers’ compensation retaliatory discharge.’ Such claims are but

one species of the broader class of claims for “wrongful dis-

charge” or “unjust dismissal” which are now recognized by most

states. Employee lawsuits challenging their terminations are in

7 Compiled from Individual Employment Rights Manual, 9A

Lab.Rel.Rptr.(BNA) 102 (index) & 540-92 (1991).

* 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, 591 (1992). Employee discharge claims come

in many varieties, including wrongful discharge, retaliatory discharge, inva-

sion of privacy (used in drug testing cases), intentional infliction of emotional

distress, breach of contract, breach of implied covenant of good faith and fair

dealing, tortious interference with contract, slander, fraud and defamation.

See Note, Steering Away From the Arbitration Process: Recognizing State

Law Tort Actions for Unionized Employees, 24 U. Richmond L.Rev. 233,

242-3 (1990). Additionally, all states now recognize employment discrimi-

nation claims based on one or more of the following: race, sex, religion,

national origin, age and disability. See Fair Employment Practices Manual,

8A Lab.Rel.Rptr.(BNA) 451:102-105 (1992).

a a

derogation of the traditional common law “employment at will”

doctrine and were relatively rare prior to the last decade. See

Stone, supra note 8, at 591. In more recent years, however, the

“at will” doctrine has been significantly eroded. The decades of

the ’80s and ’90s have seen a virtual explosion in the number of

wrongful discharge lawsuits. See White, Section 301’ s Preemp-

tion of State Law Claims: A Model For Analysis, 41 Ala.L.Rev.

377, 390 n. 57 (1990) (“wrongful discharge litigation [has been]

increasing geometrically”); Stone, supra, at 591 (a “nationwide

trend’).

To the extent such lawsuits are brought by union members

who have bypassed available contractual grievance/arbitration

procedures,’ and the suits are permitted to proceed, vital policies

and interests of the collective bargaining scheme under federal

labor law are jeopardized. “As a general rule,” this Court has

stressed, employees “must attempt use of the contract grievance

procedure agreed upon by employer and union as the mode of

redress.” Republic Steel Corp. v. Maddox, 379 U.S. 650, 652

(1965) (emphasis in original). The Court continued:

...[U]nless the contract provides otherwise, there can be

no doubt that the employee must afford the union the

opportunity to act on his behalf. Congress has expressly

approved contract grievance procedures as a preferred

method for settling disputes and stabilizing the “common

law” of the plant. LMRA §203(d), 29 U.S.C. §173(d);

§201(c), 29 U.S.C. §171(c) (1958 ed.). Union interest in

prosecuting employees grievances is clear. Such activity

complements the union’s status as exclusive bargaining

representative by permitting it to participate actively in the

continuing administration of the contract. In addition,

conscientious handling of grievance claims will enhance

*" Nearly all” CBAscontain arbitration provisions. Lingle,486 U.S. at411

n. 11.

—_ =

the union’s prestige with employees. Employer interests,

for their part, are served by limiting the choice of remedies

available to aggrieved employees. And it cannot be said in

the normal situation, that contract grievance procedures are

inadequate to protect the interests of an aggrieved em-

ployee until the employee has attempted to implement the

procedures and found them so.

A contrary rule which would permit an individual em-

ployee to completely sidestep available grievance proce-

dures in favor of a lawsuit has little to commend it. In

addition to cutting across the interests already mentioned,

it would deprive employer and union of the ability to

establish a uniform and exclusive method for orderly settle-

ment of employee grievances. If a grievance procedure

cannot be made exclusive, it loses much of its desirability

as a method of settlement. A rule creating such a situation

“would inevitably exert a disruptive influence upon both

the negotiation and administration of collective agree-

ments.” Local 174, Teamsters etc. v. Lucas-Flour Co., [82

S.Ct. 571, 577 (1962).

Maddox, 379 U.S. at 652-3 (emphasis added); accord Lueck, 471

U.S. at 219-20. Contractual grievance/arbitration procedures

play “the central role . . . in our ‘system of industria! self-

government.’” Lueck, 471 U.S. at 219, quoting Steelworkers v.

Warrior & Gulf Navigation Co., 363 U.S. 574, 581 (1960). “[A]

broad preemption doctrine” which prohibits circumvention of

contractual remedies “best serves federal labor interests.” White,

supra, at 393.

The trend of the last decade runs directly contrary to these

federal labor interests. Increasing numbers of state-law dis-

charge claims brought by union employees have been allowed to

proceed in the courts (state and federal) over §301 preemption

objections, thereby posing “significant threats to the vitality of

Ee |

.

a as

federal labor principles embodied in collective bargaining.”

White, supra, at 434; see also Smolarek v. Chrysler Corp., 879

F.2d 1326, 1339 (6th Cir.), cert. denied, 493 U.S. 992 (1989)

(Kennedy, J., concurring in part & dissenting in part) (“The

danger is clear.”). In the view of one commentator, the federal

labor scheme premised on “collective rights” is “collapsing” and

is being replaced wholesale by a “regime” of state-law-created

“individual rights.” Stone, supra, at 575-6 & 593.

Given the “central role” played by grievance/arbitration pro-

cedures in the federal labor scheme, Lueck, 471 U.S. at 219,

coupled with the recent increasing pressures on the state and

lower federal courts to allow individual union employees to

proceed with lawsuits against their employers, a special need

exists, now more than ever, for an effective and clearly defined

doctrine of §301 preemption.

B. Subsequent To This Court’s Seminal Decisions In

Lueck (285) and Lingle (1988) the Law Regarding

§301 Preemption Has Become Increasingly Un-

settled; A Further Decision By This Court Is Needed

The Court in Teamsters v. Lucas Flour Co., 369 U.S. 95

(1962) construed §301 of the Labor-Management Relations Act

to preempt any state-court suit alleging breach of a collective

bargaining agreement. In 1985 the Court recognized a broader

reach of the preemption doctrine, holding that a union employee’ s

state-law tort claim, even though not predicated on a breach of

the CBA, is preempted by §301 (and therefore subject to dis-

missal) whenever “resolution of [the] state-law claim is substan-

tialiy dependent upon analysis of the terms of [the CBA].” Allis-

Chalmers Corp. v. Lueck, 471 U.S. 202, 220-21 (1985).'° The

preemption doctrine must reach that far, the Court concluded, in

'° The Court held that Lueck’s suit against his employer for bad faith

handling of insurance benefits met the test and was therefore preempted. /d.

at 221.

=

order to assure “interpretive uniformity and predictability” for

labor agreements, to preserve the “central role of arbitration,”

and to foster the other federal labor interests listed in the above-

quoted excerpt from Maddox. Id. at 210-20. The Court also

Stated that, given the inquiry required, preemption must be

determined “on a case-by-case basis.” /d. at 220.

Three years later, in Lingle v. Norge Division of Magic Chef,

Inc., 486 U.S. 399 (1988), the Court addressed the further

question whether a state-law claim (as here, for workers’ com-

pensation retaliatory discharge) should be preempted whenever

the state court would need to engage in “the same analysis of the

facts” as would a labor arbitrator deciding an unjust-discharge

grievance under the CBA. /d. at 408 (emphasis in original). The

Court refused to recognize such factual “parallelism” as an

additional ground for §301 preemption. /d. Instead, the Court

reaffirmed the test of Lueck, namely, that preemption occurs

when resolution of the state-law claim requires “interpretation

of” or is “substantially dependent on analysis of” provisions in

a collective bargaining agreement. /d. at 410-13.

The Lueck test was not and could not be satisfied in the rather

unique procedural context of Lingle. Lingle, unlike the typical

union-employee plaintiff (who, like Cook, sues without ever

invoking the contractual grievance/arbitration procedure), had

diligently exhausted the CBA grievance procedure and obtained

an arbitrator’s award in her favor. /d. at 401-2. That award —

which found that Norge lacked “proper” and “just” cause to

terminate Lingle (id.) — was final and binding upon Norge.

Norge, unlike Hussmann and the typical employer-defendant,

was thus legally foreclosed in the subsequent lawsuit from

raising any issues or defenses predicated on provisions in the

CBA.

The prior arbitration award thus necessarily took the CBA out

of play in Lingle’s case. It was in this very unique context, then,

Tt cerereeeemeennenanemiaiiaaiiel

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that the Court observed that Lingle’s state-court action presented

a “purely factual inquiry” — centered on the “motivation of the

employer’’— that “does not turn on the meaning of any provision

of acollective-bargaining agreement.” Jd. at 407. Lingle’s state-

law claim was “independent” of the CBA “‘in the sense . . . that

matters for §301 preemption purposes” and was thus not pre-

empted. /d.

The procedural uniqueness of Lingle, which is crucial but

subtle, has been completely overlooked by the state and lower

federal courts.'’ They consequently have been confused by and

have misinterpreted the opinion, usually to the detriment of the

policies embodied in §301. Many courts (like the one below)!”

have conclusorily applied the result of Lingle (i.e., non-preemp-

tion), parroting the Court’s references to “purely factual in-

quiry,” “motivation of the employer” and “independent,” with-

out realizing that in the typical case employer CBA defenses are

not foreclosed by a prior arbitration award and that, unlike Norge

in Lingle, such employers are fully entitled to invoke specific

CBA provisions in support of their actions — the interpretation

and application of which provisions should trigger preemption.'?

Lingle’s subtle uniqueness has thus inadvertently misled the

lower courts and has made even muddier the waters of §301

preemption.

Notwithstanding Lingle’s clarion reaffirmation of the Lueck

preemption test, see Lingle, 486 U.S. at 411 & 413, judicial

confusion and conflict have significantly increased in the five

years after Lingle. See Galvez v. Kuhn, 933 F.2d 773, 774 & 776

(9th Cir. 1991) (§301 preemption after Lingle is ‘one of the most

'' See White, supra, at 413 (Lingle was decided on its “particular facts, a

point that seemingly has gone unnoticed by the lower courts”).

'? See discussion and cases cited in point C, infra.

"See White, supra, at 415 (“all too often” lower courts reject preemption

“without regard to contract interpretation issues”).

ia a es

99 6¢

confused areas of federal court litigation,” a “thicket,” “tangled

and confusing”’); Johnson v. Beatrice Foods Co.,921 F.2d 1015,

1021 (10th Cir. 1990) (“circuits have reached varying [and]

conflicting results” after Lingle); Mock v. T.G.&Y. Stores Co.,

971 F.2d 522, 530 n.8 (10th Cir. 1992)(same); Commodore v.

University Mechanical Contractors, Inc., 839 P.2d 314, 318

(Wash. 1992) (“Lingle ... gives little guidance”; “courts are still

struggling”; “§301 cases are still far from uniform or consistent,

varying widely in their holdings, even after Lingle”); White,

supra, at 378, 385, 392 & 415 (Lingle has “increased the

uncertainty in the lower courts”; courts are “sharply split”; §301

is “arapidly increasing source of litigation in the state and federal

courts”; Lingle has caused “conflicting results among and even

within circuits and between the state and federal courts’’).

A further decision from this Court is needed to guide the lower

courts and to put them back on track with respect to the all-

important heavily-litigated issue of §301 preemption.

C. The Case At Bar Presents Three Of the Most

Recurrent Issues Regarding §301 Preemption and

Is A Uniquely Appropriate Vehicle For This Court

To Settle and To Resolve Conflicts and Give Guid-

ance In This Troubled Area of Law

The case at bar is an especially well-suited candidate for

review. It presents three of the more vexing questions of §301

preemption, the answers to which will goa long way in clarifying

this entire area of law. It also involves a state-court plaintiff who

tunlike Lingle) completely bypassed the contractual grievance/

arbitration procedure, thus presenting the most recurrent §301

scenario and the one most directly affecting the important federal

labor policies embodied in §301 (see point A, supra). Finally,

the state-law claim asserted here — workers’ compensation

retaliatory discharge — is identical to the one in Lingle. A

finding of preemption by this Court in another workers’ compen-

sation retaliation case would be the most effective way to head

ND |

oa. tea

off the strong trend of the lower courts, typified by the decision

below, to apply uncritically Lingle’s result (non-preemption)

without ever coming to grips with the preemption test Lingle

reaffirms.'*

The Missouri Supreme Court below asserted that this Court in

Lingle “recognized a limited exception to the reach of federal

preemption in workers’ compensation cases” (A-4). This notion

that workers’ compensation retaliation cases are per se “inde-

pendent” of labor agreements and therefore not subject to pre-

emption has gained nearly unanimous acceptance after Lingle.'*

“In short, a finding of preemption in this case would mean that the Lingle

decision could no longer be used by the lower courts as an expedient excuse

to reject meritorious preemption objections.

'* Accord Nelson v. Central Illinois Light Co., 878 F.2d 198, 200, 202 (7th

Cir. 1989) (“Lingle requires that [workers’ compensation retaliation claims

are] not subject to preemption”; such claims have a “state-law character”

which “the defendant may not destroy” by injecting CBA issues); Knafel v.

Pepsi-Cola Bottlers of Akron, Inc., 899 F.2d 1473, 1482 (6th Cir. 1990)

(“state law prohibiting retaliatory discharges creates rights independent of

those created by a CBA”); Jones v. Roadway Express, Inc., 931 F.2d 1086,

1090 (Sth Cir.) reh’ g denied, 936 F.2d 789 (1991) (“the right to be free from

retaliatory discharge for pursuing workers’ compensation exists . . . indepen-

dently of the CBA”); Smolarek v. Chrysler Corp., 879 F.2d 1326, 1331 (6th

Cir. 1989) (“the state-law tort of retaliatory discharge creates rights indepen-

dent of those established by the CBA and hence is not preempted”); see also

Wolfe v. Central Mine Equipment Co., 850 F.2d 469, 470 (8th Cir. 1988)

(where the court found no preemption simply because “Lingle applies with

equal force to Missouri’s workers’ compensation statute” without inquiring

into whether CBA provisions were implicated in the case); Zablotsky, The

Continuing Availability of Retaliatery Discharge and Other State Tort

Causes of Action to Employees Covered by Collective Bargaining Agree-

ments, 56 Albany L.Rev. 371, 393-4 & 396-7 (1992) (“The Supréme Court

has unequivocally held that such claims are not preempted”; the “independent

nature of the cause of action” precludes preemption); see also additional

cases Cited in note 18 below.

The one case to the contrary is Nash v. AT&T Nassau Metals, 381 S.E.2d

206, 208 (S.C. 1989) (“There is no general rule which establishes that the tort

... Will always be immune from preemption”).

—°

But Lingle does not carve out any such “exception” for workers’

compensation cases. See Nash, note 15, supra. Nor does it

suggest, contrary to the prevalent view of the lower courts, see

Nelson, note 15, supra, that certain types of state-law rights are

by their very nature “independent” of labor agreements and “not

subject to preemption.””'®

Rather, Lingle emphasizes that the test of ““independent’ that

matters for §301 pre-emption purposes” is whether “resolution

of the state-law claim does not require construing the collective-

bargaining agreement.” Lingle, 486 U.S. at 407. That determi-

nation, the Court previously made clear in Lueck, can only be

made on a “case-by-case basis.” Lueck, 471 U.S. at 220. The

issue is not the inherent nature of the state-created cause of

action, but whether the right “as applied” in a particular lawsuit

would require interpretation of a labor agreement. Lueck, 471

U.S. at 209 (emphasis added).

This Court should grant review to correct the widespread

impression in the lower courts, which conflicts with Lueck and

Lingle and the Supreme Court of South Carolina’s decision in

Nash, note 15, supra, that workers’ compensation retaliation

cases constitute a special “exception” to the reach of federal

preemption.

A further distinct but related question has also sharply split the

courts: Does §301 preempta plaintiff’s claim where, as here, the

employer injects CBA provisions into the case by way of

defense? The cases fall into essentially three groups on this

question, with two answering in the negative and one in the

affirmative.

One line of cases, relying on Caterpillar Inc. v. Williams 482

U.S. 386 (1987), rejects the notion of “defensive preemption”

'6 See also White, supra, at 413 (Lingle “was not resolved on the basis of

the nature of the state law claim’’).

~~

out of hand.'? Caterpillar involved the issue of the limited jur-

isdiction of the federal courts in the removal context. The Court

held that a defendant-employer sued in state court under state

law could not create federal removal jurisdiction by raising CBA

issues in its defense, observing that, in the removal context, the

plaintiff is “the master of the claim.” Caterpillar, 482 U.S. at

392. Absent “complete preemption” of the plaintiff’s claim the

federal district court in such a case lacks removal jurisdiction. /d. at

393.

Toallow apiaintiff tocontrol the choice of a state-court forum,

however, is not to say he may unilaterally (by not mentioning the

CBA provisions in his complaint) immunize his state-law claim

from preemption under the test of Lueck. See Hanks, note 17,

supra; White, supra, at 408-10. Caterpillar does not speak to the

latter issue (so-called “ordinary preemption”) and addresses

defensive preemption strictly in the context of removal jurisdic-

tion. Nonetheless, the interplay (if any) between Caterpillar and

Lueck, and between “complete” and “ordinary” preemption, has

been a source of much confusion and division in the lower courts.

See White, supra, at 403-10 (and the authorities there cited and

compiled). This case is an appropriate vehicle for the Court to

resolve the conflict and to give guidance.

A second line of cases holds, as did the court below (A-4 to 5),

that where the employer’s “motivation” is a key element of the

plaintiff's claim, that issue is always “purely factual” and, under

the authority of Lingle, the claim is not preempted.'* These cases

"’ See, e.g., Nelson, 878 F.2d at 202-203 (“‘the defendant may not destroy

the state-law character of the plaintiff's suit merely by raising a legal

defense”); accord Bettis v. Oscar Mayer Foods Corp., 878 F.2d 192, 197n.8

(7th Cir. 1989); contra Hanks v. General Motors Corp., 859 F.2d 67, 70 (8th

Cir. 1988) and other cases cited in note 22, infra.

** See Jarvis v. Nobel/Sysco Food Services Co., 985 F.2d 1419 (10th Cir.

1993) (workers’ compensation retaliation claim not preempted because only

issue was “motive” of employer); accord Marshall v. TRW, Inc., 900 F.2d

(Footnote 18 continued on next page)

ite iii einen eieie

em

so hold even where, as here, the employer contends that its

reason and “motive” for terminating the employee was the

employee’s violation of specific provisions in the CBA (which

the jury will need to interpret and apply, thereby triggering

preemption). Some of these courts, like the one below, simply

cite Lingle as authority and summarily reject such contentions by |

employers (even though, as noted in point B above, Lingle is

fundamentally inapposite because the arbitrator’s award fore-

closed any such contention by Norge).

Other courts of this second school also rely on the language of

Lingle but attempt to take the analysis a step farther. They say,

drawing a very fine distinction, that the jury will need to decide

only whether the employer’s motive was truly to carry out its

interpretation of its nights under the CBA (rather than some

retaliatory motive), without further having to decide whether the

employer’s interpretation of the CBA is actually “correct.”"

(Footnote 18 continued)

1517 (10th Cir. 1990); Eldridge v. Felec Services, Inc., 920 F.2d 1434 (9th

Cir. 1990); Knafel v. Pepsi-Cola Bottlers of Akron, Inc., 899 F.2d 1473 (6th

Cir. 1990); Smolarek v. Chrysler Corp.,879 F.2d 1326 (6th Cir. 1989); Bettis

v. Oscar Mayer Foods Corp., 878 F.2d 192 (7th Cir. 1989); Jones 931 F.2d

at 1090 (workers’ compensation retaliation claim not preempted because

employer’s CBA defenses merely go to the question of “credibility”); cf.

Sweeney v. Westvaco Co., 926 F.2d 29, 36 (1st Cir.) cert. denied, __ U.S.

___, 112 S.Ct. 274 (1991) (but if “reasonableness” of employer’s conduct is

at issue rather than “motive,” claim is preempted).

'9 See Smolarek, 879 F.2d at 1334 (only issue was whether employer “felt

bound” by its interpretation of the CBA, not whether its “interpretation . . . is

correct”); Jarvis, 985 F.2d at 1427 (employer’s “contention that it was

motivated by its understanding of the CBA is a factual matter for the jury” but

the “correctness” of the employer’s interpretation is not at issue, only whether

it was held in “good faith” and “actually motivated” the employer); Eldridge,

920 F.2d at 1439 (“It is irrelevant whether the company’s reliance on the labor

agreement was reasonable or whether its interpretation of the agreement was

correct”); Bettis, 878 F.2d at 197 (jury “must simply determine whether such

a [non-retaliatory] motive exists — not whether . . . the CBA justifies such a

motive”).

LL

=

Under this theory the jury will assess only the employer’s

subjective state of mind, without ever deciding whether the CBA

actually conferred the rights the employer claimed to be exercising.

This distinction, not surprisingly, has been severely criticized.

See White, supra, at 429-31; Marcus, The Need for a New

Approach to Federal Preemption of Union Members’ State Law

Claims, 99 Yale L.J. 209, 221 (1989). How can the credibility

of the employer’s asserted “motive” to enforce and comply with

specific provisions in a CBA be assessed without looking at

those provisions to see what they say and what they appear to

mean? It is unrealistic to presume that the jurors in such a case

would be willing (or even able) to close their eyes to what the

CBA provisions actually say and to reach no conclusions at all

as to whether the employer’s interpretations of the provisions

and reliance thereon were reasonable or not.”” The compelling

federal labor law policy requiring uniformity of CBA interpre-

tation — so that employers and unions can rest assured in the

certainty that their bargained-for words and phrases will always

be given their customary interpretation by arbitrators in accord

with the law of the shop — is just as severely jeopardized in this case

as it was in Lueck. The prospect that state-court jurors will be

making their own determinations of Hussmann’s rights under its

bargained-for agreement with the Steelworkers is a matter of utmost

concern to Hussmann and, we submit, to the federal interests

embodied in §301.”" This Court should grant review to scrutinize

this widespread but highly suspect view of the lower courts.

* These realities of human nature will not change even if, as occurred in

one case, the jurors are specifically instructed not to engage in interpretation

of the labor agreement in assessing the employers asserted motive predicted

thereon. Marshall v. TRW, Inc., 900 F.2d 1517, 1524 (10th Cir. 1990).

"See McCormickv. AT&T Technologies, Inc.,934 F.2d 531, 538 (4th Cir.

1991), cert. denied, ____ U.S. ___, 112 S.Ct. 912 (1992) (“[t]o exempt

[plaintiff's] claims from preemption [where employer raises CBA defenses]

would be to invite the courts of these states to give conflicting constructions

to the single CBA in determining whether management conduct is wrong-

ful’); White, supra, at 431; see also the cases cited in the next footnote.

—_—

The third line of cases, in direct conflict with the first two,

holds that where, as here, the employer points to specific provi-

sions in the CBA as its reasons for discharging the plaintiff, the

state-law discharge claim is preempted.” In such a case, these

courts hold, the fact finder will need to engage in interpretation

and application of the CBA provisions in order to resolve the

merits of the claim, thereby triggering preemption under §301.

2 Nash, note 15, supra (workers’ compensation wrongful discharge claim

preempted where employer’s defense was that employee refused to comply

with CBA provision requiring him to be examined by doctor selected by

employer). All of the following cases likewise sustained preemption based

on employer CBA defenses but involved claims other than for workers’

compensation retaliatory discharge: Mock v. T.G.&Y. Stores Co., 971 F.2d

522, 524 & 530 (10th Cir. 1992) (plaintiff's claims “arose out of the manner

in which [employer] conducted its investigation of suspected employee

misconduct”; whether employer “wrongfully interrogated” plaintiff “will

inevitably require analysis of what the CBA permitted”); Johnson v. Anheuser

Busch, Inc. 876 F.2d 620, 624 (8th Cir. 1989) (whether alleged wrongful acts

regarding discharge and “the investigation leading up to it” were “inten-

tional” “would require us to decide whether [plaintiff's] discharge was

warranted under the terms of the CBA”’); McCormick, 934 F2d at 536 (claim

preempted where employer’s “authority” to act and the “rightness or wrong-

ness” of its conduct is measured against CBA); Johnson v. Beatrice Foods

Co., 921 F.2d 1015, 1018 & 1020 (10th Cir. 1990) (factfinder cannot

determine wrongfulness of employer’s conduct “without determining whether

[it] was allowed under the [CBA]”; “Indeed, ‘[a]ctions that the [CBA] permits

might be deemed reasonable in virtue of the fact that the CBA permits

them’”’); Clark v. Newport News Shipbuilding and Dry Dock Co., 937 F.2d

934, 937 (4th Cir. 1991) (“So long as the employer acted within his contrac-

tual rights, the claims cannot be evaluated without reference to the contract

for a determination of whether the employer’s actions were reasonable under

the contract, taking into account the ‘expectations of the parties’ in light of the

provisions of the agreement”); Jackson v. Liquid Carbonic Corp., 863 F.2d

111, 121 (ist Cir. 1988), cert. denied, 490 U.S. 1107 (1989) (due to CBA

defenses trial would “prominently feature the labor pact and its due construc-

tion’’); Harris v. Alumax Mill Products, Inc., 897 F.2d 400 (9th Cir.), cert.

denied, 498 U.S.835 (1990); Douglas v. American Information Technologies

Corp., 877 F.2d 565 (7th Cir. 1989); Laws v. Calmat, 852 F.2d 430 (9th Cir.

1988); Newberry v. Pacific Racing Assoc., 854 F.2d 1142 (9th Cir. 1988).

i ceeeeeeriaceeleeieieiaaamcalaneieaaiiiaiiaiiiial

_— om

In the case at bar, as plaintiff’s own admissions confirm (see

pp. 4 - 5, supra), the key issue in the trial of this case would be

whether Hussmann acted properly in asking Cook questions

about the apparently false statements in her employment appli-

cation and in terminating her for refusing to answer. That issue,

plainly, cannot be resolved without interpreting and applying the

express” provisions in Hussmann’s labor agreement which

specifically address this situation and upon which Hussmann

explicitly relied. See pp. 3 - 5, supra.

Under the cases of the third line, which conflict with the cases

of the first two lines cited above, but which are in full accord with

this Court’s pronouncements in Lingle and Lueck, the court

below should have found Cook’s claims to be preempted by

§301. This Court should grant review to settle the conflicts and

to resolve these fundamental issues going to the very heart of the

doctrine of §301 preemption.

Another question presented by this case — a question ex-

pressly reserved in Lingle, 486 U.S. at 409 n. 9 — is whether

Cook’s claim is barred by “waiver.” Assuming arguendo

Hussmann’s “motive” could be assessed without interpreting the

CBA and there is otherwise no preemption under the Lueck/

Lingle contract-interpretation test, the further question then is

whether Cook’s state-law rights were nonetheless waived by the

CBA entered into by the Steelworkers union on her behalf. The

court below expressly held they were not (A-6).

As Cook’s admissions make clear (pp. 4 - 5, supra), the key

state-law right Cook claims Hussmann violated was her alleged

right not to be asked questions about the injuries she denied

having on her original employment application and her corre-

sponding right to refuse to answer the questions. It is clear,

however, that Hussmann had express and implied rights under

* “Implied” rights and duties under the CBA might also need to be

considered in resolving Cook’s claim. See Lueck, 471 U.S. at 215.

the CBA to ask the questions and to discipline (including

discharge) her for refusing to answer. See CBA provisions at pp.

3-5, supra; see also Laws, 852 F.2d at 433-4 (CBA expressly

and impliedly authorized employer to investigate suspected

contract violation [re intoxication] and to discipline for insubor-

dination employee who refused to be tested); Clark v. Newport

News Shipbuilding and Dry Dock Co., 937 F.2d 934, 937 (4th

Cir. 1991) (employer may investigate and discharge for contract

violations).

Cook’s asserted state-law rights are thus diametrically op-

posed to Hussmann’s rights under the CBA. This case squarely

presents the question whether CBA provisions may “waive” and

supersede rights existing under state law.” This is a fundamen-

tally important question under the federal labor scheme,” as

Lingle’s reservation of it confirms, and this case provides an

appropriate vehicle to review it.

% A further issue is whether the nonwaiver provision in the Missouri statute

(see A-6) is itself preempted by federal labor law. See Lingle, 486 U.S. at 409

n. 9.

5 The decision below also conflicts with the following cases on this issue:

Young v. Anthony's Fish Grottos, Inc., 830 F.2d 993, 1001 (9th Cir. 1987)

(“union can waive the right of [an] employee to the protection of [state-law]

tort”); McCormick, 934 F.2d at 537 (“If management. . . was entitled under

the agreement to [act] in the manner it did, its actions ipso facto could not have

been wrongful under state law”); see also Medrano v. Excel Corp., 985 F.2d

230, 234 n. 3 (Sth Cir. 1993) (“when a plaintiff asserts that acts unquestion-

ably taken in accordance with the provisions of the CBA were nonetheless

tortious, such claims will obviously require an interpretation of the CBA” and

are therefore preempted); but see Jarvis, 985 F.2d at 1429 (“[t]he purpose of

these actions [for retaliatory discharge] was to override the contractual rights

of the employer”).

a

=. yn

CONCLUSION

Petitioner Hussmann Corporation respectfully submits that its

Petition for a Writ of Certiorari to the Supreme Court of Missouri

should be granted.

Mark J. Bremer

(Counsel of Record)

Rebecca S. Stith

KOHN, SHANDS, ELBERT,

GIANOULAKIS & GILJUM

One Mercantile Center

24th Floor

St. Louis, Missouri 63101

(314) 241-3963

Counsel for Petitioner

APPENDIX

APPENDIX A

SUPREME COURT OF MISSOURI

EN BANC

No. 75142

ROSETTA COOK,

Appellant,

VS.

HUSSMANN CORPORATION,

Respondent.

APPEAL FROM THE CIRCUIT COURT

OF ST. LOUIS COUNTY

Honorable Robert W. Saitz, Judge

[Duplicate of filing on: April 20, 1993]

Section 287.780, RSMo 1986,' protects employees from retal-

iatory discharge or discrimination brought about by the employ-

ees’ exercise of rights granted by the Workers’ Compensation

Act, Chapter 287, RSMo. We hold that neither federal nor

Missouri law requires an employee to invoke or exhaust the

grievance procedure in a collective bargaining agreement before

filing suit under the statute. We accordingly reverse the sum-

mary judgment in favor of respondent, and remand.

' The statute provides as follows:

Discrimination because of exercising compensation rights prohib-

ited — civil action for damages. — No employer or agent shall

discharge or in any way discriminate against any employee for exercis-

ing any of his rights under this chapter. Any employee who has been

discharged or discriminated against shall have a civil action for dam-

ages against his employer.

Bay e. paee

I.

On review of a defendant’s motion for summary judgment,

this Court views the record in the light most favorable to the

plaintiff, according to plaintiff all reasonable inferences that

may be drawn from the evidence. Summary judgment is appro-

priate only if the pleadings, depositions, answers to interrogato-

ries, and admissions on file, together with the affidavits filed in

connection with the motion, demonstrate that there is no genuine

issue as to any material fact and that the movant is entitled to

judgment as a matter of law. Rule 74.04(c); Martin v. City of

Washington, __ S.W.2d __ (Mo. banc 1993).

—__?

The record below establishes that appellant Rosetta Cook was

injured in the course of her employment with respondent

Hussmann Corporation, a Missouri corporation, and that she

filed a claim for workers’ compensation against respondent and

the second injury fund. The claim made reference to certain

injuries sustained by appellant before she began working for

respondent. Appellant asserts that respondent repeatedly tried to

interrogate her concerning these injuries. On the advice of her

attorney, appellant refused to answer respondent’s questions

unless she was allowed to have her attorney or a shop steward

present in the room. Appellant alleges that she was suspended

and then fired from her job because of this refusal.

Respondent filed a motion to dismiss or for summary judg-

ment, supported by the affidavit of its general counsel and vice

president. The affidavit asserts that appellant was covered by a

collective bargaining agreement between respondent and the

United Steelworkers of America. It states that appellant was

terminated for insubordination and for failing to disclose pre-

employment injuries and back problems in her employment

application, in violation of plant rules and the labor agreement.

Finally, it asserts that appellant never invoked the agreement’s

grievance procedure with respect to her discharge. Respondent

a

—_ oes

argues that, under federal law, appellant’s failure to grieve her

discharge precludes her from obtaining relief under § 287.780.

Appellant and her attorney filed affidavits in Opposition to

respondent’s motion, containing a detailed chronology of the

events leading tothe discharge. Appellant’s affidavit adduces an

admission by respondent that appellant would not have been

questioned about her prior injuries if she had not filed her

compensation claim.

The circuit court sustained respondent’s motion for summary

judgment, on the grounds that appellant did not file a grievance

in accordance with her collective bargaining agreement. The

Eastern District of the Court of Appeals reversed, holding that a

civil action filed under § 287.780 is independent of the collective

bargaining process and is not preempted by federal law. We

granted transfer to resolve a conflict with earlier decisions that

required exhaustion of the grievance mechanism prior te filing

suit under the statute. See Kramer v. McGlynn Bakeries, Inc.,

738 S.W.2d 892 (Mo. App. 1987); Barks v. Bi-State Develop-

ment Agency, 727 S.W.2d 464 (Mo. App. 1987); Brock v. Stout

Industries, Inc.,717 §.W.2d 278 (Mo. App. 1986); McKiness v.

Western Union Telegraph Co., 667 S.W.2d 738 (Mo. App.

1984).

I.

Appellant’s first point asserts that her retaliatory discharge

claim is not precluded by the collective bargaining agreement

under either federal or Missouri law. Federal law controls the

resolution of labor disputes when the parties have negotiated a

collective bargaining agreement, through the Labor Relations

Management Act, 29 U.S.C. § 185 et seq. The United States

Supreme Court has held that § 30/ of the act preempts state law

remedies that conflict with those provided by a labor contract.

When the resolution of a state law claim is “substantially

dependent” upon analysis of the terms of a labor contract, the

beg ad

claim must be treated as a § 30/ claim or dismissed as preempted

by federal labor law. Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 220 (1985). The Eighth Circuit Court of Appeals inter-

preted Lueck to bar state statutory claims for retaliatory dis-

charge when the parties are covered by a collective bargaining

agreement. Johnson v. Hussmann Corp., 805 F.2d 795, 797 (8th

Cir. 1986).

Our court of appeals was guided by these decisions when

considering the impact of labor agreements on the right of action

created by § 287.780. In McKiness, the court ruled that whether

an employee was discharged for exercising her workers’ com-

pensation rights is a dispute falling within the subject matter of

a labor agreement. Thus, the court held that employees must

exhaust the remedies provided in the agreement before seeking

redress under § 287.780. 667 S.W.2d at 741; accord Kramer,

738 S.W.2d at 894-5; Barks, 727 S.W.2d at 467. Further, the

court gave preclusive effect to factual determinations reached

through the collective bargaining grievance process when the

agreement provides it is the exclusive remedy for disputes.

Brock, 717S.W.2d at 280; accord Prattv. Purcell Tire & Rubber

Co., 846 S.W.2d 230, 233 (Mo. App. 1993).

Shortly after Kramer, Barks and Brock were decided, how-

ever, the United States Supreme Court recognized a limited

exception to the reach of federal preemption in workers’ com-

pensation cases. Lingle v. Norge Division of Magic Chef, Inc.,

486 U.S. 399 (1988). The Supreme Court found that a state law

remedy for retaliatory discharge is “independent” of a collective

bargaining agreement, and thus not subject to preemption, if its

resolution involves “purely factual questions pertain[ing] to the

conduct of the employee and the conduct and motivation of the

employer.” /d. at 407. This exception holds true even if the

grievance mechanism and the siate law remedy “would require

addressing precisely the same set of facts, as long as the state-law

claim can be resolved without interpreting the agreement itself’.

Id. at 409-10.

— = ee

“The analysis in Lingle applies with equal force to Missouri’s

workers’ compensation statute.” Wolfe v. Central Mine Equip-

ment Co., 850 F.2d 469, 470 (8th Cir. 1988). Like the Illinois

Statute at issue in Lingle, § 287.780 created a judicially cogni-

zable independent tort. Hopkins v. Tip Top Plumbing & Heating

Co., 805 S.W.2d 280, 286 (Mo. App. 1991); Reed v. Sale

Memorial Hospital & Clinic, 698 S.W.2d 931, 940 (Mo. App.

1985). A claim brought under our statute presents factual

questions that relate solely to the conduct and intent of the

parties. See Hansome v. Northwestern Cooperage Co., 679

S.W.2d 273, 275 (Mo. banc 1984).

In short, appellant alleges that respondent fired her in retalia-

tion for bringing a workers’ compensation claim. If true, such

acts violate $ 287.780, and that statute provides that a civil suit

for damages may be brought. The rights and remedies provided

by § 287.780 are independent of and in addition to any rights

provided by the collective bargaining agreement. Although

these same acts might have allowed appellant to proceed against

respondent under the collective bargaining agreement for rem-

edies provided therein, she did not do so, nor was she required to :

do so. Because appellant’s § 287.780 claim is separate and

independent of the collective bargaining agreement, it is not

preempted by federal labor law. Accord Wolfe, 850 F.2d at 470.

Il.

Missouri law also generally holds that when a collective

bargaining agreement provides a grievance procedure for the

settlement of disputes between the employer and the union or the

employee, the party aggrieved must exhaust the remedies pro-

vided by the agreement before resorting to the courts for redress.

Williams v. St. Joe Minerals Corp., 639 §.W.2d 192, 195 (Mo.

App. 1982); Williams v. Clean Coverall Supply Co., 613 S.W.2d

659, 661 (Mo. App. 1980); accord Grubb v. Leroy L. Wade &

Son, Inc., 384 §.W.2d 528, 533 (Mo. 1964). This rule, however,

— os

applies only to claims brought under the labor agreement and

alleging a breach of its provisions. The exhaustion requirement

does not extend to claims based exclusively on a violation of

independent employee rights derived from a source other than

the agreement, such as § 287.780.

Moreover, the rights protected by $ 287.780 cannot be bar-

gained away. See Haase v. New Hampshire Insurance Co., 795

S.W.2d 543, 544 (Mo. App. 1990). The Workers’ Compensa-

tion Act provides that “no agreement by an employee or his

dependents to waive his rights under this chapter shall be valid”’.

§ 287.390.1 RSMo Supp. 1992. The plain intent of this statute

is, inter alia, to preserve the right of action granted by § 287.780.

Thus, under Missouri law, the inclusion of a grievance mecha-

nism in a collective bargaining agreement cannot be deemed to

be a waiver, either implicit or explicit, of the employees’ statu-

tory right to bring a civil action for retaliatory discharge or

discrimination.” Accordingly, we hold that a § 287.780 suit may

be brought without first invoking or exhausting the collective

bargaining grievance process. The grant of summary judgment

based on appellant’s failure to grieve her discharge was in error.

Our disposition of this issue renders it unnecessary to consider

appellant’s remaining contentions. The summary judgment in

favor of respondent is reversed, and the cause is remanded to the

trial court for further proceedings.

WILLIAM RAY PRICE, JR., JUDGE

All concur.

? The Supreme Court in Lingle left open the question of whether a union

may waive its members’ individual, nonpreempted state law rights. The

Court noted that it would require “clear and unmistakable” evidence of waiver

before deciding whether federal law preempts a state law bar (such as

Missouri's § 287.780 to the waiver of these rights. 486 U.S. at409 n. 9. The

parties did not present such evidence of waiver in this case.

a Kh,

APPENDIX B

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

DIVISION THREE

No. 60428

ROSETTA COOK,

Plaintiff-Appellant,

Vv

HUSSMANN CORPORATION,

Defendant-Respondent.

Appeal from the Circuit Court of the County of St. Louis

Honorable Robert W. Saitz

OPINION FILED: June 30, 1992

Rosetta Cook (Plaintiff) instituted a discriminatory discharge

action against Hussmann Corporation (Defendant) alleging that

she was discharged because she filed a Workers’ Compensation

claim under § 287.780 RSMo 1986. The Circuit Court of St.

Louis County entered summary judgment in favor of defendant

and plaintiff appeals. We reverse and remand.

BACKGROUND

The pleadings, affidavits of both plaintiff and defendant and

the exhibits reveal the following facts. Plaintiff, an employee of

defendant, sustained injuries in the course and scope of her

employment, and on August 9, 1990, filed a workers’ compen-

sation claim under § 287.780 RSMo 1986,' against defendant

'§ 287.780 RSMo 1986 provides:

No employer or agent shall discharge or in any way discriminate against

any employee for exercising any of his rights under this chapter. Any

employee who has been discharged or discriminated against shall have a civil

action for damages against his employer.

All statutory references refer to RSMo 1986 unless otherwise cited.

ont aoe

and the second injury fund. A collective bargaining agreement

was in force between defendant and Local 9014, United Steel-

workers of America. Plaintiff was subject to its terms. Defen-

dant received plaintiff's workers’ compensation claim form,

including the second injury fund claim, on August 16, 1990. In

its answer to the claim for compensation, defendant admitted the

accident.

Plaintiff’s attorney informed her that it was unethical for any

one employed by defendant and/or its insurance company to talk

to her concerning her claim and that she should refuse to discuss

her claim.

Plaintiff alleges that defendant discriminated against her in

the following manner:

(a) In the morning of August 21, 1990, Eldon Williams, an

employee of defendant’s industrial relations department, called

plaintiff to his office to discuss her claimed injuries. Plaintiff

refused to divulge any information based upon her attorney’s

advice. In addition, plaintiff requested the presence of a shop

steward, which was denied. Later in the afternoon, Ron Frank,

superintendent of defendant’s plant, escorted plainuff to Mr.

Williams’ office. Plaintiff refused to answer any questions

without the presence of a shop steward. Consequently, plaintiff

was suspended.

(b) On August 27, 1990, defendant made repeated efforts to

interrogate plaintiff concerning the cetails of her worker’s com-

pensation claim and the injuries claimed therein.

(c) On August 28, 1990, plaintiff met with Mr. Williams,

another company official and a union representative. Plaintiff

was questioned about her original employment application form

and the injuries stated in her second injury claim fund. Once

again plaintiff refused to give any information.

—

(d) On September 5, 1990, plaintiff received notice of her

discharge from defendant’s employ. Defendant’s reasons for

terminating plaintiff were violations of Plant Rule 1 (falsifica-

tion of application or other company records), Plant Rule 20

(insubordination) and Article 9 § 4 paragraph I of the collective

bargaining agreement (falsification or omission of relevant

information on employment application).

Plaintiff did not grieve her discharge. Instead, she filed a

petition alleging she was discriminatorily discharged for exer-

cising her rights under the Missouri Workers’ Compensation

law. Plaintiff’s petition incorporates the four elements required

to state a cause of action for discriminatory discharge, namely:

(1) plaintiff’s status as an employee of defendant prior to the

injury, (2) plaintiff’s exercise of a right granted by Chapter 287,

(3) employer’s discharge of or discrimination against plaintiff,

and (4) an exclusive causal connection between plaintiff’s

actions and defendant’s actions. Hansome v. Northwestern

Cooperage Co.,679 S.W.2d 273, 275 (Mo. banc 1984); Wiedower

v. ACF Industries, Inc., 715 S.W.2d 303, 305 (Mo. App. 1986)

appeal after remand 763 S.W.2d 333 (Mo. App. 1988); Hopkins

v. Tip Top Plumbing And Heating Co., 805 S.W.2d 280, 283

(Mo. App. 1991).

Defendant moved for summary judgment on three separate

grounds, namely: (1) plaintiff failed to exhaust the grievance

procedure under the governing collective bargaining agreement,

(2) plaintiff's claim is preempted by § 301 of the federal Labor-

Management Relations Act, 29 U.S.C. § 185(a), (3) the petition

fails to state a claim upon which relief may be granted. Defen-

dant attached the affidavit of its general counsel, Burton Halpern,

which established that plaintiff was governed by the collective

bargaining agreement and she neither grieved nor invoked the

contractual grievance/arbitration procedure. Plaintiff and her

attorney filed affidavits opposing summary judgment but did not

dispute the two facts established by Mr. Halpern’s affidavit. The

— A-10 —

trial court granted defendant’s motion for summary judgment on

the ground that plaintiff failed to grieve her discharge.

ISSUES ON APPEAL

Plaintiff raises three issues on appeal. We limit our discussion

to the first issue which is dispositive. The gist of plaintiff’s first

issue is that the statutory right for actual and punitive damages

under § 287.780 exists independently of, and cannot be con-

tracted away or provided for in the collective bargaining agree-

ment. In addition, plaintiff asserts that the collective bargaining

agreement does not provide for enforcement of the “public

policy” right afforded by § 287.780.

STANDARD OF REVIEW

When reviewing a summary judgment motion, we glean

through all the pleadings, depositions, answers to interrogatories

and admissions on file, along with the affidavits to ascertain

whether there is any material fact issue and whether the moving

party is entitled to judgment as a matter of law. Magee v. Blue

Ridge Professional Building Co., Inc., 821 S.W.2d 839 (Mo.

banc 1991). The party opposing summary judgment “may not

rest upon mere allegations or denials in his pleadings but must,

... by affidavits or otherwise, set forth specific facts showing a

genuine issue for trial.” St. Charles County v. Dardenne Realty

Co., 771 S.W.2d 828, 830 (Mo. banc 1989).

A summary judgment will be sustained on appeal if it is

supportable on any theory, even though not the one adopted by

the trial court. Zafftv. Eli Lilly & Co.,676S.W.2d 241,243 (Mo.

banc 1984); St. Louis Children’s Hospital v. Commerce

Bancshares, Inc., 799 S.W.2d 87, 90 (Mo. App. 1990). We

review the record in the light most favorable to plaintiff. Zafft,

676 S.W.2d at 244.

— A-11 —

DISCUSSION

Ab initio, we determine whether plaintiff’ s reliance on Midgett

v. Sackett-Chicago, Inc.,473 N.E.2d 1280 (Ill. 1984), 105 Ill. 24

143, 85 Ill. Dec. 475 cert. denied 472 U.S. 1032, 105 S.Ct. 3513

and cert. denied 474 U.S. 909, 106 S.Ct. 278 is justified, and

whether her cause of action for wrongful discharge stands,

notwithstanding the fact that plaintiff failed to exhaust the

grievance procedure mandated by the collective bargaining

agreement. In Midgett, the Illinois Supreme Court held that

union employees governed by acollective bargaining agreement

could institute a tort action for retaliatory discharge “indepen-

dent of any contract remedy the employee may have based on the

collective-bargaining agreement.’? 473 N.E.2d at 1283. In

extending this independent tort action to union employees, the

Illinois Supreme Court relied on the strong public policy of the

State of Illinois in ensurin g the protection of workers covered by

the Workers’ Compensation Act. /d. at 1284. Imposition of

sanctions on violators of strong pubic policy and assessing

Punitive damages against employers who unjustly discharge

employees was the main concern of the Midgert Court. Id.

Missouri Courts recognize that § 287.780 creates an “inde-

pendent tort action for retaliatory discharge”, and when the

employer’s actions warrant it, an award of punitive damages

may lie. Reed v. Sale Memorial Hosp. And Clinic, 698 S.W.2d

931, 940 (Mo. App. 1985); Wiedower, 715 S.W.2d at 308;

Krasney v. Curators of University of Mo., 765 S.W.2d 646 (Mo.

App. 1989) (“. . . a violation of § 287.780 of the Workers’

Other jurisdictions recognizing that employees are not limited tocontrac-

tual remedies are: “Puchert v. Agsalud (1984), Haw.,677 P.2d 449; Peabody

(Tex. 1980), 610 S.W.2d 450; Vaughn v. Pacific Northwest Bell Telephone

Co. (1980), 289 Or. 73, 85-89, 611 P.2d 281, 287-90; Judson Steel Corp. v.

Workers’ Compensation Appeals Board (1978), 22 Cal.3d 658, 586 P.2d 564,

150 Cal. Rptr. 250.” 473 N.E.2d at 1284-1285.

— A-12 —

Compensation Law gives rise to a cause of action in damages for

retaliatory discharge in favor of an employee . . . against the

employer.”) 765 S.W.2d at 651 n. 7 (citing Hansome, supra, and

Arie v. Intertherm, Inc., 648 S.W.2d 142, 149 (Mo. App. 1983).

The Reed Court states that § 287.780 declares “public policy”

and should be construed in a manner whereby the remedy sought

to be achieved by its enactment is promoted. 698 S.W.2d at 940.

The “evil to be remedied” was the lack of an effective remedy for

retaliatory discharge actions brought under Chapter 537. /d. In

conclusion the Reed Court stated:

One of the bases for recognition of a “common law” right

to recovery was the inadequacy of the remedy afforded by

criminal statutes which prohibited employers from inter-

fering with their employees’ exercise of their rights under

the Workers’ Compensation Law. See Kelsay v. Motorola,

Inc., 74 M1l.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 359

(1979); Lally v. Copygraphics, 173 N.J. Super. 162, 413

A.2d 960, 969 (1980). Jd.

In creating a “judicially cognizable tort” under § 287.780

Missouri courts have been motivated by a ‘public policy’ con-

cern. In addition, our courts have drawn support from other

jurisdictions in imposing punitive damages to quell unjustified

employer action. See Reed, supra n. 2.

Here, the introductory clause of Article 7, in the Collective-

Bargaining Agreement, reads as follows:

“Section 1. The parties desire that complaints and griev-

ances be settled whenever possible by the supervisor and

the employee(s) in the department where the complaint

originates.

Grievances are defined as an alleged violation by the Com-

pany of a specific provision of this Agreement.” (emphasis

added).

— A-13 —

Defendant argues that this language suggests a mandatory

grievance procedure, which is expressly stated to be “final and

binding.” We read the language as permissive, not mandatory.

Cf. Barks v. Bi-State Development Agency, 727 S.W.2d 464

(Mo. App. 1987);3 Brock v. Stout Industries, Inc., 717 §.W.2d

278 (Mo.App. 1986).4 As a result, plaintiff can pursue an

alternate route, Particularly where, as here, plaintiff has satisfied

the four elements necessary to bring an action for retaliatory

We are mindful of the teachings of McKiness y. Western

Union Telegraph Co., 667 S.W.2d 738, 741 (Mo. App. 1984),

ance procedure prior to resorting to the courts for redressal.

However, in the above cited authorities, the court considered

plaintiff’s claim as though it were a breach of the collective-

bargaining agreement, as opposed to a tort action. Accordingly,

federal decisions mandating exhaustion of grievance procedures

184 (1989). See also Johnson v. Hussmann Corp., 805 F.2d 795,

797 (8th Cir. 1986) (employee’s state law tort Claim for retalia-

tory discharge was pre-empted by federal labor law and Stated a

federal cause of action and was therefore Properly removed to

federal court.)

*“Section 4 of the Collective Bargaining Contract Provides in pertinent

Part that:

Any question relating to grievances or the interpretation of any provision

of this Agreement arising between the Company and the Union or the

employees which cannot be amicably adjusted by conferences, shall be

submitted to arbitration as provided herein.” Barks, 727 S.W.2d at 466.

*“All grievances shall be settled and determined exclusively by the

Grievance Procedure . . . “ Brock, 717 S.W.2d at 280.

iia

We are guided by the United States Supreme Court decision

in Lingle v. Norge Div. of Magic Chef, Inc., 108 S.Ct. 1877

(1988) where the Supreme Court expressly addressed the issue:

“whether an employee covered by acollective-bargaining agree-

ment that provides her with a contractual remedy for discharge

without just cause may enforce her state-law remedy for retalia-

tory discharge.” 108 S.Ct. at 1879. In Lingle, the plaintiff filed

suit in Illinois state court claiming she was discharged by her

employer for exercising her rights under the Illinois Workers’

Compensation Act. Illinois permits an employee, who is dis-

charged for filing a workers’ compensation claim, to sue for

damages. The Lingle Court found that the elements necessary to

bring a retaliatory discharge claim in Illinois did not require

interpretation of any terms of the collective-bargaining agree-

ment. /d. at 1882. The Supreme Court was aware that resolving

a dispute according to a collective-bargaining agreement, on the

one hand, and state law, on the other, would involve a similar

factual inquiry. /d. at 1883. Therefore, the Supreme Court

concluded that “‘as long as the state-law claim can be resolved

without interpreting the agreement itself, the claim is “indepen-

dent” of the agreement for § 301 pre-emption purposes.” /d.°

Defendant cites to Kramer v. McGlynn Bakeries, Inc., 738

S.W.2d 892 (Mo. App. 1987) to advance the proposition that

“the very allegation of discriminatory discharge in violation of

§ 287.780 is itself ‘dependent upon terms of the collective-

bargaining agreement for its proper resolution.’ “ 738 S.W.2d at

895. Kramer is distinguishable from the present case. The “acts

of discrimination” complained of in Kramer, (for example,

>In a different factual context, the court, in Southwestern Bell Telephone

Co. v. Buie, 758 S.W.2d 157 (Mo. App. 1988), relying on Lingle, held that

state law applied where the collective-bargaining agreement had not been

interpreted by the trial court. /d. at 161. Buie was nota retaliatory discharge

case. Buie grieved his suspension and chargeback of commissions which was

upheld by the arbitrator.

i

a

— A-15 —

reduction in working hours after plaintiff filed her Workers’

Compensation claim, defendant’s refusal to pay disability ben-

efits or reimburse her medical expenses, “to retain the same days

off that she had previously had.”) warranted construction and

interpretation of the collective-bargaining agreement. Jd. Ac-

cordingly, the Kramer Court held that plaintiff’s claim was pre-

empted by federal law. Here, the “acts of discrimination” are

independent of the collective-bargaining agreement.

We believe Lingle controls the present case. The “acts of

discrimination” complained of do not compel construction or

interpretation of the collective-bargaining agreement. Missouri

permits an employee who is discharged for filing a workers’

compensation claim to sue for damages. Plaintiff has stated a

cause of action for discriminatory discharge under § 287.780.

Defendant’s motion for summary judgment cannot be sustained

on any theory. Zafft v. Eli Lily Co., supra.

Judgment reversed and cause remanded for further proceed-

ings.

/s/ James A. Pudlowski

JAMES A. PUDLOWSKI,

PRESIDING JUDGE

JUDGE ALBERT J. STEPHAN JR.,

and

JUDGE ROBERT E. CRIST, CONCUR.

— A-16—

APPENDIX C

IN THE CIRCUIT COURT

OF THE COUNTY OF ST. LOUIS

STATE OF MISSOURI

DIVISION 6

No. 616212

Team B

ROSETTA COOK,

Plaintiff,

v.

HUSSMANN CORPORATION,

Defendant.

JUDGMENT

(Filed: June 18, 1991]

On December 26, 1990 defendant Hussmann Corporation

filed its Motion for Summary Judgment and to Dismiss. On June

18, 1991, the matter came up for hearing, the parties appearing

by counsel.

After considering the arguments of counsel, the parties’

briefs, all exhibits, affidavits, and other matters of record, the

Court finds it to be undisputed that plaintiff did not file a

grievance in accordance with the collective bargaining agree-

ment in existence at the time of the occurrence mentioned in the

petition and the Court therefore concludes that defendant is

entitled to judgment in its favor as a matter of law.

Accordingly, on this 18th day of June, 1991 it is hereby

ORDERED, ADJUDGED AND DECREED that defendant’s

motion be and the same is hereby sustained and that plaintiff's

—

cause of action be and the same is hereby dismissed with

prejudice, at plaintiff’s costs.

SO ORDERED:

/s/ Robert W. Saitz

Judge

Dated: June 18, 1991

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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