Opposition Brief — Hussmann Corp. v. Cook

Bupreme Court, U.S.

ge ee

OCT - 6 993

No. 93-111

IN THE

Supreme Court of the Hnited States

OcToBER TERM, 1993

|

HUSSMANN CORPORATION,

Petitioner,

VS.

RoseTTaA Cook,

Respondent.

RESPONDENT’S REPLY BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Ray A. GERRITZEN

MICHAEL A. GERRITZEN

GERRITZEN & GERRITZEN

~ One Mercantile Center

Suite 2505

St. Louis, Missouri 63101-1600

(314) 231-2786

Counsel for Respondent

October 6, 1993

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

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TABLE OF CONTENTS

TABLE OF AUTHORITIES CITED................cccccsess.0-

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TABLE OF AUTHORITIES CITED

Page(s)

Cases:

Allis-Chalmers v. Lueck, 471 U.S. 202 (1985)............. 8,10

Beckman v. Freeman United Coal Min. Co., 122 Ill.Dec.

S05, S27 W.E.Bl SOS (0. TID oc sevcceusescesnes 9

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

Coir, TIE)... ssnvnssiseniandonicunnepeveahsenenelenmiaaeenaian annie 11

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ....... 9

Coleman v. Thompson, __ U.S. __, 111 S.Ct. 2546

CTDBL) .sciicsscsncacsscsnisevevcnneprenonsiuateeeeaaiaanee 13

Electrical Worker v. Hechler, 481 U.S. 862 (1987)....... 10

Fort Halifax Packing Co. v. Coyne, 482 U.S. 1

(BERG 7 ) ..sassssnsisessnvescnyensesonansenssetieiaaaiaeanenE 13

Hansome v. Northwestern Cooperage Co., 679 S.W.2d

273 (Mo.banc 1984) ................. shunsiecdudbelalenmenemaanaet 9

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

SPIE scisai-sinencnvsscensichovssciinantenainaantatannannannn nan 10

Jones v. Roadway Exp., Inc., 936 F.2d 789 (Sth Cir.

NIE ) « ocssceonssiensssvnsicainehenascennieseeetiee innate anna 13

Lingle v. Norge Div. of Magic Chef, Inc., 823 F.2d 103

CPs Cin. TB 7) ss scvusssccscaniesenntnnnnmeaaneaaaannnels 9

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

FID CEGGED ocesnesccersceccnsenciemeanimeseameneanaeeaenae 7,8,9,10,

11,12,13,14

Martin v. Carling National Breweries, Inc., 486 U.S.

1OQGD (19GB) 2. .cnsessensisesesncscexsnenselieasl iene 9

— ni—

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

cs nsacauanucbivsilaniiinn

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

Uhler v. American Federation of Labor-Congress of

Indus. Organizations, 486 U.S. 1310 (1984).........

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

a Baik tad cabnctesicenncsassscasbace vienstionssunes

Constitutional Provisions and Statutes:

Article III, United States Constitution.....................00..0.

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

ET te ae it GEES cee

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42 U.C.C. §12112(d)(4)(A) [ Americans With Disabili-

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6,8,9

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No. 93-111

IN THE

Supreme Court of the United States

OcToBER TERM, 1993

HUSSMANN CORPORATION,

Petitioner,

VS.

ROSETTA Cook,

Respondent.

RESPONDENT’S REPLY BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

The Facts

Respondent respectfully suggests that the Petitioner’s State-

ment of the Case incorrectly states the operative facts by partially

quoting from the affidavits of Rosetta Cook and Ray A. Gerritzen,

her attorney, and failing to include other facts. Respondent

believes it is necessary to point these out.

Hussmann had receipt of Cook’s Missouri Workers’ Com-

pensation claim against Hussmann, which specifically indicates

that she was represented by Ray A. Gerritzen, Attorney at Law

(L.F. 18, 22, 35-36). Thereafter, Eldon Williams of Hussmann’s

Industrial Relations Department called Cook into his office, and

Cook states the following occurred:

“Williams said to me, ‘I want to talk to you about the injury

that you have filed a claim against this company.’ I then

informed Eldon Williams that I had been instructed by my

attorney, Ray A. Gerritzen, thatno company representative

had any right to privately talk to me about the case. I

specifically informed Eldon Williams, ‘It is very unethical

for you to want to discuss this case with me, knowing I have

a lawyer.’ I had also stated, ‘I am not discussing anything

unless I have a shop steward present.’ When these 2

statements were made by me to Eldon Williams he became

extremely hostile, argumentative, pointed his finger in my

face, and shouted in a loud voice at me, ‘I have a right to

discuss this injury claim with you and you sit down —you

sit down!’ as I was attempting to raise up out of my chair at

the time. I repeated, ‘I am not talking to you without a shop

steward,’ whereupon Williams stated, ‘I demand for you to

sit down and I am giving you a direct order to sit down in

that chair!’ He was extremely belligerent, continued to

point his finger in my face, and repeated, ‘You get back in

that chair and sit down. I am giving you a direct order. Sit

down!’ He repeated that he had a right to talk to me as

‘you're making a claim against this company’, and ‘I have

a right to talk to you about this claim.’ I then told Williams,

‘I am not talking to you. I was brought up to respect my

elders. You are old enough to be my father, and you’re

talking to me like a dog, and I am not talking to you without

a shop steward’ and I walked out of the office of Eldon

Williams.” (L.F. 11-12)!

‘Petitioner states at page 4 of its Statement of the Case that “He (Eldon

Williams) 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 representative present, and walked out of his office (per

(Footnote 1 continued on next page)

Thereafter, Cook was called to Eldon Williams’ office later that

afternoon, and she states the following occurred:

“At 12:45 p.m. | arrived for the second time at the office of

Eldon Williams, having been brought there by Ron Frank.

I was left standing in the hallway just outside Eldon Wil-

liams’ office about 5 minutes, whereupon Eldon Williams

came back into the office. Thereafter, Ron Frank and Eldon

Williams had a discussion about whether or not Eldon

Williams had talked to me ‘like a dog’. Then I was in-

structed by Ron Frank to come into Williams’ office. I

repeated my request for a shop steward and Ron Frank

repeated his denial of my request. After I resisted further

attempts by Williams to discuss my Workers’ Compensa-

tion claim, Eldon Williams stated, ‘that there’s no reason-

ing with her—take her out of here and suspend her.’

Immediately thereafter, under the orders of Eldon Wil-

liams, Ron Frank took me to my time clock, instructed me

to clock out, and demanded that I give my employee badge

to him. This treatment of me and suspension from work was

a clear discrimination against me because I exercised my

rights under the Missouri Workers’ Compensation law.”

(L.F. 12-13)?

(Footnote 1 continued)

Cook’s affidavit, L.F. 11).” It should be noted that the only evidence

presented by Hussmann was the CBA, (L.F. 37-69), and the Affidavit of

Bruce Halpern (L.F. 35-36), its general counsel, who had no personal

knowledge of these conversations. Halpern based his affidavit on review of

Cook’s employment records, which were never put into evidence. Cook filed

her affidavit and her attorney’s affidavit specifically detailing conversations

with Eldon Williams. This is the only evidence of what was actually said

during these conversations.

? Petitioner states at page 4 of its Statement of the Case, “At the conclusion

of asecond 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).”

Thereafter, Cook says the following occurred:

“Sometime the night before or during that early morning of

August 27, 1990, Eldon Williams called my home and left

a message on my answering machine requesting I call him

at 291-2000, station 2467. I relayed this message to my

attorney, Ray A. Gerritzen” (L.F. 13).

Thereafter, Ray A. Gerritzen, Cook’s attorney, says the follow-

ing occurred:

“On Monday morning, August 27, 1990, Rosetta Cook

called me and advised me that Eldon Williams had left a

message on her answering machine requesting that she call

him at 291-2000, station 2467. At approximately 10:29

a.m. on August 27, 1990, I called Eldon Williams at the

above number and re-informed him I represent Rosetta

Cook and asked him what he wanted with her. His reply to

me was, ‘We want to talk to her about her original applica-

tion and these injuries she says she has in this claim for

compensation.’ He said to me, ‘This does not involve her

attorney.’ I advised him that in my opinion it does and I

asked him to have his attorney call me. He asked for my

phone number and asked my name. I specifically asked him

if he did not have a copy of our Workers’ Compensation

claim in front of him. His reply was, ‘We probably do have

that somewhere around here, but this does not involve that

claim.’ I then asked him well, if it does not involve the

claim, how come you want to question her about the injuries

she claims she has in her claim. He did not answer that

question. I repeated my request to have his attorney call me.

I repeated my phone number and spelled out my name for

him” (L.F. 19-20).

> Petitioner states at page 4 of its Statement of the Case, “A few days later,

Williams explained to Cook’s lawyer over the phone that ‘we want to talk to

her about her original application’ (per counsel’s affidavit, L.F. 19).”

Thereafter, Cook says the following occurred:

On August 28, 1990, at approximately 10:30 a.m. at the

request of the Defendant, I went to Defendant’s plant and

specifically a conference room at Defendant’s office, where

there was present Eldon Williams and Roger O’ Neal. Also

present was Brenda Singleton, vice president of the union

at Hussmann Corporation. Roger O’Neal asked me ques-

tions regarding my original application for employment,

whereupon I told Defendant I was not discussing the

original application. Roger O’Neal then showed me my

Missouri Workers’ Compensation claim form for my cur-

rent Workers’ Compensation claim and began questioning

me regarding the contents of the claim and the injuries |

claimed I had. He requested detailed information regarding

my injuries I claimed under the Missouri Workers’ Com-

pensation law, including the Second Injury Fund injuries

stated on my claim. During those requests, Brenda Single-

ton specifically asked Williams and O’ Neal ‘If Rosetta had

not filed her Workers’ Compensation claim, would you

have her in this office asking her these questions?’ Roger

O’Neal’s specific answer was ‘No, we would not.’ When I

refused to answer the questions from Eldon Williams and

Roger O’ Neal regarding my claimed injuries in my Work-

ers’ Compensation claim against Defendant, I left the of-

fice. It is clear this conduct by Defendant was a clear dis-

crimination against me because I exercised my rights under

the Missouri Workers’ Compensation law.” (L.F. 14-15)*

‘Petitioner states at page 4 of its Statement of the Case, “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).”

Thereafter, Cook filed suit in St. Louis County stating she was

discriminated against and discharged by Hussmann in violation

of §287.780 (L.F. 70-73). She states this was a direct result of her

exercise of her rights and remedies under the Missouri Workers’

Compensation law (L.F. 72).° Hussmann filed a Motion for

Summary Judgment attaching the affidavit of its in-house attor-

ney and vice-president, Bruce Halpern, who based his affidavit

upon review of Cook’s employment records (L.F. 35-36) and

moved for the suit to be dismissed based upon preemption of

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

and Cook’s failure to invoke or exhaust the grievance procedure

under the CBA (L.F. 30-33).°

The Circuit Court of St. Louis County entered Summary

Judgment for Hussmann on the express finding that it was

undisputed that Plaintiff did not file a grievance in accordance

with the CBA (L.F. 6). The Missouri Court of Appeals, Eastern

District, reversed, finding that the grievance procedure under the

CBA was permissive, not mandatory (Petitioner’s Appendix A-

* Petitioner states at page 5 of its Statement of the Case, “The petition

alleged she was discharged ‘particularly because she would not submit to

private demeaning interrogation by Eldon Williams and others’ (L.F. 72).”

The Petition, in fact, states, “Plaintiff further states that as a direct result of

being discriminated against and ultimately discharged by the Defendant

because of her filing a claim and pursuing her rights under the Missouri

Workers’ Compensation law, and particularly because she would not submit

to private demeaning interrogation by Eldon Williams and others regarding

her accident at work and injuries for which she filed a claim under the

Workers’ Compensation law.” (emphasis ours).

* Petitioner states at page 5 of its Statement of the Case, “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).” The

Affidavit, in fact, states, “I was terminated solely and only because I refused

to be interrogated by Hussmann personnel, after / had filed a Missouri

Workers’ Compensation claim and Hussmann had written notice of the fact

of my claim and representation of me by Ray A. Gerritzen, Attorney at Law.”

(L.F. 10) (emphasis ours).

i, ae

13), and following Lingle v. Norge Div. of Magic Chef, Inc., 486

U.S. 399 (1988), the four elements necessary to state a cause of

action under §287.780 RS Mo. do not compel the construction or

interpretation of the CBA. (Petitioner’s Appendix A-i5). The

Court noted the four elements: “(1) plainuff’s status as an

employee of defendant prior to the injury; (2) plaintiff’s exercise

of anght 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”

(Petitioner’s Appendix A-9). The Supreme Court of Missouri

granted transfer “to resolve a conflict with earlier decisions that

required exhaustion of the grievance mechanism prior to filing

suit under the statute.” (Petitioner’s Appendix A-3). The Mis-

souri Supreme Court, reversed the trial court following the

decision in Lingle, supra, by holding that the 4 elements needed

to be proven under a §287.780 cause of action did not require the

interpretation of the CBA, and therefore, there was no preemp-

tion and Plainuff was not required to exhaust the grievance

procedures set forth in the CBA prior to bringing her civil cause

of action under §287.780 (Petitioner’s Appendix A-4-6). After

noting that the parties did not present evidence of a waiver of the

§287.780 rights in this case (Petitioner’s Appendix A-6, n.2), the

Missouri Supreme Court held that the rights protected by §287.780

cannot be bargained away by the inclusion of a grievance

mechanism in a CBA (Petitioner’s Appendix A-6). The Opinion

did not address whether there would be a waiver based upon a

provision in a CBA clearly waiving §287.780 or “clear and

unmistakable” evidence of a waiver in a CBA, which issue was

left open by this Court in Lingle, supra, at 409, n. 9.

On August 26, 1993, more than four months after the Missouri

Supreme Court’s Opinion, Hussmann filed an Answer in the

Circuit Court of St. Louis County and raised as an affirmative

defense certain provisions contained in the CBA as its motive for

suspending and terminating Plaintiff.

REASONS FOR DENYING THIS WRIT

The Missouri Supreme Court Below Followed The Well-

Settled Precedent Of This Court Concerning Preemption

Under §301 Of The Labor-Management Relations Act, And

Did Not Decide Any New Or Unique Federal Question

Concerning Preemption; Any Alleged Conflict Between The

Federal Circuit Courts Regarding Preemption Post-Lingle

Involves Issues And Facts Not Present In This Case; And

This Case Involves Factual Issues Unlikely To Arise In The

Future Due To The Subsequent Enactment Of The Ameri-

cans With Disabilities Act.

The limited exception to Federal preemption recognized in

Lingle, followed and clarified the earlier precedent of this Court

and does not need re-examination. In Allis-Chalmers v. Lueck,

471 U.S. 202 (1985), this Court found preemption of a Wiscon-

sin tort remedy for alleged bad faith in handling a disability

insurance claim that was specifically provided for in the collec-

tive bargaining agreement. The determinative factual issue was

described as whether the case involved non-negotiable state

rights independent of the CBA or whether “evaluation of the tort

claim (was) inextncably intertwined with consideration of the

terms of the labor contract.” Id. at 213.’ In Lingle v. Norge

Division of Magic Chef, Inc., 486 U.S. 399 (1988), this Court

specifically found there was no preemption of an Illinois Work-

ers’ Compensation retaliatory discharge suit, as none of the

elements of the cause of action required a court to interpret any

terms of the CBA. The elements of a Missouri and Illinois

Workers’ Compensation retaliatory discharge suit are the same,

? The Court specifically noted in Lueck, U.S. at 213, “Clearly, §301 does

not grant the parties to a collective-bargaining agreement the ability to

contract for whatis illegal under state law. In extending the pre-emptive effect

of §301 beyond suits for breach of contract, it would be inconsistent with

congressional intent under that section to preempt state rules that proscribe

conduct, or establish rights and obligations, independent of a labor contract.”

=

and therefore, there is no preemption in the underlying case.*

This Petition should be denied as the sound decision in Lingle,

does not need to be re-examined, and it clearly is controlling in

the case at bar.

The lower courts have uniformly applied the Lingle precedent

holding that Workers’ Compensation retaliatory discharge claims

are not preempted by §301, when the elements of the cause of

action do not require the interpretation of a CBA. Petitioner is

* Under Illinois law, there are 3 elements of the cause of action: (1)

Plaintiff's status as an employee of Defendant before injury; (2) Plaintiff’s

exercise of a night granted by the Act; (3) Employee’s discharge causally

related to the filing of aclaim under the Act. Becksnan v. Freeman United Coal

Min. Co., 122 IIl.Dec. 805, 807, 527 N.E.2d 303, 305 (Ill. 1988). This Court

~ inLingle, U.S. at 407, noted only two elements, leaving off employcc status.

In Missouri, there are 4 elements: (1) Plaintiff’s status as an employee of

Defendant prior to the incident upon which the claim is based; (2) Plaintiff's

exercise of a right granted by the Act; (3) Employer’s discharge of or

discrimination against Plaintiff; (4) an exclusive causal relationship between

Plaintiff's exercising rights under the Workers’ Compensation laws and

Defendant terminating Plaintiff. Hansome v. Northwestern C ooperage Co.,

679 S.W.2d 273, 275 (Mo.banc 1984). The elements of the Missouri and

Illinois cause of action are the same, because the third and fourth elements

under Missouri law are the same as the third element under Illinois law. In

Illinois, the cause of action is not based on specific statutory provisions, noted

by this Court in Lingle, U.S at 406-407, n. 6, but in Missouri, there is specific

statutory authority. §287.780 RSMo. (1973).

* Petitioner attempts to differentiate this case from Lingle based on the

assumption that this Court’s decision in Lingle was limited to employecs who

had already availed themselves of the arbitration process. To the contrary , this

Court reversed and vacated the 7th Circuit’s decision in Lingle, as to a

consolidated claim which involved an employee who had not availed himself

of the arbitration process. Martin v. Carling National Breweries, Inc., 486

U.S. 1049 (1988); Lingle v. Norge Div. of Magic Chef, Inc., 823 F.2d 1031,

1034 (1987). Furthermore, in Lingle, U.S. at 410, n. 10, this Court cited

Caterpillar, Inc. v. Williams, 482 U.S. 386, 394-395, for the proposition that

plaintiffs could have sought redress under the CBA, but as masters of their

complaint, were not required to do so.

pe

really asking this Court to accept this case to issue an opinion on

conflicts, it claims exist, between various courts on causes of

action, other than Workers’ Compensation retaliatory discharge.

The one alleged conflicting Workers’ Compensation retaliatory

discharge case it cites is Nash v. AT&T Nassau Metals, Inc., 381

S.E.2d 206 (S.C.1989), but Nash, in fact, was a claim for

intentional infliction of emotional distress-and outrageous con-

duct arising out of the employer’s termination of the employee,

after the employee refused to attend a medical appointment. The

elements of the cause of action in Nash, and in fact, the entire

cause of action, is different from the underlying case and the case

present in Lingle. In fact, the Nash decision is in following with

the case-by-case analysis of Lingle and Lueck. Petitioner, in

essence, is asking this Court, in violation of Article III of the

United States Constitution, to issue an advisory opinion on the

issue of whether there is preemption in various state causes of

action other than Workers’ Compensation retaliatory discharge

cases, such as slander, assault and battery, infliction of emotional

distress, outrageous conduct, handicap discrimination, and ra-

cial discrimination. This Court should not issue opinions on

hypothetical state law beyond that of the present case. Electrical

Worker v. Hechler, 481 U.S. 862, 864 n. 5 (1987). Examination

of the cases cited by Petitioner show that there is no confusion

amongst the federal circuits or state courts as to Workers’

Compensation retaliatory discharge suits, which do not involve

the interpretation of a CBA, such as the underlying case and

Lingle’®.

"© Smolarek v. Chrysler Corporation, 879 F.2d 1326 (6th Cir. 1989) (no

preemption under Michigan Workers’ Compensation retaliation suit and suit

for discrimination under Michigan Handicappers’ Civil Rights Act; dissent

argues for preemption of handicap claim, but says no preemption of workers’

compensation retaliation); Wolfe v. Central Mine Equipment Co., 850 F.2d

469,470 (8th Cir. 1988) (no preemption of Missouri Workers’ Compensation

Retaliatory discharge suit, reversing Johnson v. Hussmann Corp., 805 F.2d

(Footnote 10 continued on next page)

a ee

Petitioner also claims there is a conflict between the circuits

as to whether an affirmative defense, based on a CBA, triggers

federal preemption. This once again is premised upon Petitioner’s

request that this Court issue an advisory opinion on cases unlike

the present one, being based exclusively on Workers’ Compen-

sation discrimination. There, in fact, is no conflict amongst the

circuits regarding the preemptive effect of affirmative defenses

in Workers’ Compensation cases.!!

The issue in the underlying case is whether the suspension and

termination of Plaintiff's employment with Hussmann arose

from Hussmann’s attempted interrogation of Plaintiff about her

Workers’ Compensation claim, in the absence of her attomey, or

whether the suspension and termination arose from an attempted

interrogation about Plaintiff’s employment application. This is

purely a factual issue of Hussmann’s motive, and it doesn’t

(Footnote 10 continued)

797 (8th Cir.1986) which had held, pre-Lingle, for preempuon of Missouri

Workers’ Compensation retaliatory discharge suit); Bettis v. Oscar Mayer

Foods Corp., 878 F.2d 192 (7th Cir.1989) (no preemption of Illinois Work-

ers’ Compensation retaliatory discharge claim). It should be noted that these

Cases involve state causes of action for workers’ compensation retaliatory

discharge suits with the same elements as Lingle and the present case. There

are other decisions with causes of action that have completely different

elements, as apparently, the particular State law does not recognize a specific

cause of action for Workers’ Compensation retaliatory discharge. These suits

are usually claims for intentional infliction of emotional distress, claims for

outrageous conduct, and/or claims for breach of implied covenant of good

faith. Since these types of claims are contrary to Missouri law, they are

irrelevant to this case and this inquiry.

'' [tis important to note that Hussmann never filed an Answer until August

26, 1993, well after the April 20, 1993 Missouri Supreme Court en banc

opinion. As a consequence, the specific issue of preemption based upon

Hussmann’s affirmative defenses in its Answer was never before the Mis-

souri Supreme Court, and Hussmann is once again requesting an advisory

opinion from this Court.

Sl

Pre) po

involve the interpretation of the CBA. Lingle, supra. As such,

there is no preemption. Petitioner claims the affidavits of Rosetta

Cook and her attorney state otherwise, but the affidavits them-

selves show its claim to be misleading. (See Respondent’s

Statement of the Case.)

Petitioner next incorrectly states that the underlying case

presents a ripe issue left open in Lingle. The Missouri Supreme

Court Opinion states that “the rights protected by §287.780

(Missouri Workers’ Compensation retaliatory discharge statute)

cannot be bargained away”, (Petition A-6) and Petitioner seeks

to have this Court review that decision. The facts of the case

show this portion of the Missouri Supreme Court opinion is

dictum. Footnote 2 of the Missouri Supreme Court Opinion

states:

The Supreme Court in Lingle left open the question of

whether a union may waive its members’ individual, non-

preempted state law rights. The Court noted that it would

require “clear and unmistakable” evidence of waiver before

deciding whether feder..: law preempts a state bar (such as

Missouri's §287.780) tothe waiver of these rights. 486 U.S.

at 409 n. 9. The parties did not present such evidence of

waiver in this case. (A-6) (emphasis ours)

Petitioner now seeks this Court to take this case to issue an

advisory opinion on waiver of §287.780 by Plaintiff, when they

never raised it at all in the trial court, the Missouri Court of

Appeals, Eastern District, or the Missouri Supreme Court, not to

mention the failure of raising “clear and unmistakable” evidence

of a waiver. Lingle, 486 U.S. at 409 n. 9. This Court is constitu-

tionally precluded from issuing advisory Opinions on the waiver

issue, Article II], United States Constitution, as it is clear from

the facts of this case that there is no evidenced case or contro-

versy on waiver. Uhler v. American Federation of Labor-

Congress of Indus. Organizations, 105 S.Ct.5,468 U.S. 1310, 82

L.Ed.2d 896 (U.S.Col.1984). Second, this Court lacks jurisdic-

ie Daa

tion and its opinion on waiver would be advisory as the Missouri

Supreme Court’s decision that the §287.780 cause of action does

not require the interpretation of the CBA is sufficient to justify

their decision, and any resolution of the waiver issue would not

affect the decision. Coleman v. Thompson, ___U.S.__, 111 S.Ct.

2546, 2553-2554 (1991). Besides this, Petitioner’s Petition

(pp.21-22) fails to cite any portion of the CBA which demon-

strates “clear and unmistakable” evidence of a waiver, Lingle,

486 U.S. at 409 n. 9, as there isn’t one. Therefore, the facts, as

described by this Court in Lingle, to find a waiver are totally

absent, even if same had been raised by Petitioner at any stage of

this case before this Petition.

Also, contrary to Petitioner’s position, federal law is clear,

after this Court’s decision in Lingle, that certain state labor

standards, including Workers’ Compensation, are not preempted.

As stated by this Court in Lingle, supra, U.S. at 412:

“In Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 21

(1987), we emphasized that ‘preemption should not be

lightly inferred in this area, since the establishment of labor

standards falls within the traditional police power of the

State.’””

Clearly, the recognition, that a worker, union member or not,

cannot be discriminated against for asserting State Workers’

Compensation rights, is such a labor standard. This is supported

by Congress. As stated in Jones v. Roadway Exp., Inc., 936 F.2d

789, 792 (Sth Cir. 1991):

“We instructed the district court to vacate its judgment and

remand the case to state court because only a state law claim

remained and because Congress had declared its intent that

Workers’ Compensation suits should be resolved in state

court whenever possible. S. Rep. No. 1830, 85th Cong., 2nd

Sess., reprinted in 1958 U.S. Code Cong. & Admin. News

3099, 3103-06 * * * In deciding to remand the case, we

mot es

relied heavily on the fact that Congress had enacted a

statute, 28 USC §1445(c), barring the removal from state

court of an action arising under the Workers’ Compensa-

tion laws of that state. Congress clearly intended that state

courts should resolve workers’ compensation suits.”

This Court in Lingle clarified federal preemption with Workers’

Compensation cases, and there is no reason to re-examine this

sound precedent.

Even if it was determined that Lingle should be revisited, this

case would not be an appropriate vehicle. This case involves an

employee allegedly not disclosing a previous Workers’ Com-

pensation claim in an employment application. This inquiry is

currently forbidden under the Americans With Disabilities Act.

42 USC §12112(d)(4)(A); 29 C.F.R. §1630.13(b). As a conse-

quence, any decision by this Court would set a precedent only for

cases that arose prior to the Americans With Disabilities Act.

This waste of the Court’s resources weighs heavily against

revisiting Lingle, if there was such an inclination.

CONCLUSION

Respondent Rosetta Cook respectfully submits that the Peti-

tion for a Writ of Certiorari to the Supreme Court of Missouri be

denied.

Ray A. Gerritzen

Michael A. Gerritzen

GERRITZEN & GERRITZEN

One Mercantile Center

Suite 2505

St. Louis, MO 63101-1600

(314) 231-2786

Counsel for Respondent

EEE