Petition for Writ of Certiorari — Hussmann Corp. v. Cook
Supreme Court brief1993
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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,
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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”).
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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 |
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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)
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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
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