Jones v. Truck Drivers Local Union No. 299 Respondents Brief Opposition

    No. 89-290

In  The

^itjtrrmr (Umtrt at %  Mtttteit §tatni
October Term, 1989

F rances J ones, Beverly Harder, 
E leanor Murray, Linda N ickel, and 

Mary Ruane,
Petitioners,

v.

Truck Drivers Local Union No. 299,
Respondent.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Gerry M. Miller 
Marianne Goldstein Robbins 
P reviant, Goldberg, Uelm en ,

Gratz, Miller & Brueggeman, S.C. 
P.O. Box 92099 
788 North Jefferson Street 
Milwaukee, WI 53202 
(414) 271-4500 
Attorneys for Respondent

W i l s o n  -  Ep e s  P r i n t i n g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1

60



QUESTIONS PRESENTED

A. Whether the court of appeals’ denial of reconsidera­
tion further in light of Lingle v. Norge Division of 
Magic Chef, Inc. presents a question warranting 
review?

B. Whether the court of appeals decided an issue war­
ranting review when it held that a contractually 
mandated seniority system was bona fide under the 
Michigan Elliott Larsen Act, M.C.L.A. § 37.2211?

(i)





TABLE OF CONTENTS
Page

QUESTIONS PRESENTED .............................   i

TABLE OF AUTHORITIES... .....................................   iv

STATEMENT OF THE CASE .................. ................ ,.... 1

SUMMARY OF ARGUMENT.............................  5

REASONS FOR DENYING THE W RIT__________ 5
I. THE COURT OF APPEALS’ DENIAL OF 

RECONSIDERATION FURTHER IN LIGHT 
OF L1NGLE v. NORGE DIVISION OF 
MAGIC CHEF, INC. IS CORRECT AND 
DOES NOT WARRANT REVIEW ................ 5
A. Neither The Decision Nor The Record Below

Raises The Question Presented In The Peti­
tion _______ ______ ___ _____________ ____ _ 5

B. The Court Of Appeals Correctly Held That
Norge Division Of Magic Chef, Inc., ------
U.S. ------ 108 S.Ct. 1877 (1988) Did Not
Impact On Its Decision Herein..................... 8

C. Petitioners Failed To Timely Raise The Ap­
plication Of Lingle v. Norge Division of 
Magic Chef, Inc., ------ U.S. ------  108 S.Ct.
1877 (1988) ............. .......... ................................ 13

II. THE COURT OF APPEALS’ DECISION 
THAT THE CONTRACTUALLY MANDATED 
SENIORITY SYSTEM WAS BONA FIDE 
UNDER THE MICHIGAN ELLIOTT LAR­
SEN ACT M.C.L.A. §37.2211 IS CORRECT 
AND DOES NOT WARRANT REVIEW ........... 14
A. The Question Raised By The Petition Does

Not Warrant Review_____ ___ ____ _______ 14
B. The Court Of Appeals’ Decision Is Correct.. 15

CONCLUSION.................... ................... ..................... .......  17

(iii)



IV

TABLE OF AUTHORITIES
Cases: Page

Allis-Chalmers v. Lueck, 471 U.S. 202 (1985).... 7,8,
11,13

American Tobacco v. Patterson, 456 U.S. 63
(1982) .......     17

BLE v. Industrial Comm., 604 F. Supp. 1417
(D. Utah, 1985)............................................... ........  11

Caterpillar v. Williams, ------U.S. —— 107 S.Ct.
2425, 2433 (1987)____ __ ______ _________ __  12

Charlton v. Norge Division, Borg Warner Corp.,
407 F.2d 1062 (6th Cir. 1969).....................  6

Delapp v. Continental Can, 868 F.2d 1073 (9th
Cir. 1989) ___ __________ ____________ ___ _ 12

Douglas v. American Information Technologies,
Corp., 877 F.2d 565 (7th Cir. 1989) ...... ........... . 12

Electrical Workers v. Hechler, ------ U.S. — —
107 S.Ct. 2161, 2168 (1987)............. ............8, 11, 12, 13

Ford Motor Company v. Huffman, 345 U.S. 3330
(1953) .....................        6

Freeman v. Motor Convoy, 700 F.2d 1339 (11th
Cir. 1983)......................... ........... .............. .......-....... 16

Gravel v. United States, 408 U.S. 606 (1972)..... 14
Hanks v. General Motors, 859 F.2d 67 (8th Cir.

1988) __ ____________ ____ ___________________ _ 12
Jackson v. Liquid Carbonic Corp., 863 F.2d 111 

(1st Cir. 1988) cert. den. 6/12/89, 57 U.S. LW
3812 _____________________________ _______  11,12

James v. Stockham Valve & Fitting Co., 559 F.2d
310 (5th Cir. 1977)............................ ............... . 16

Jones v. Truck Drivers Local 299, 748 F.2d 1083
(6th Cir. 1984) ................................. ...-............ ...... 3

Knafel v. Pepsi-Cola Bottlers of Ankron, Inc.,
850 F.2d 1155 (6th Cir. 1988)........................... . 12

Laws v. Calmat, 852 F.2d 430 (9th Cir. 1988).... 11, 12 
Lingle v. Norge Division of Magic Chef, Inc., 823

F.2d 1031 (7th Cir. 1987) ................ ................. . 13
Lingle v. Norge Division of Magic Chef, Inc.,

------ U.S. ------  108 S.Ct. 1877, 1885 (1988).. 4, 5, 7,
8, 9,10,13,14



V

TABLE OF AUTHORITIES—Continued
Page

Maynard v. Revere Copper Products, Inc., 773
F.2d 733 (6th Cir. 1985) ........... .................. ........ 9,11

National Labor Relations Board v. Pittsburgh
Steamship Company, 340 U.S. 498, 503 (1985).. 14

Newberry v. Pacific Racing Association, 854 F.2d
1142 (9th Cir. 1988).......................... ............................ .............  12

Pullman-Standard v. Swint, 456 U.S. 273 (1982).. 17
Salinas v. Roadway Express, Inc., 735 F.2d 1574

(5th Cir. 1984) ............... ........ ........ ......................... 16
Salinas v. Roadway Express, Inc., 802 F.2d 787,

789 (5th Cir. 1986).... ........ ................ ..............................  16
Shaw v. Delta A ir Lines, 463 U.S. 85, 95 (1983).. 11
Teamsters v. Lucas Flour, 369 U.S. 95 (1962).... 9
Teamsters v. United States, 431 U.S. 324 (1977).. 16,17 
United States v. Doe, 455 F.2d 753, 762 (1st Cir.

1972) ......... .......................................................... ........ 14
United States v. East Texas Motor Freight, 564

F.2d 179 (5th Cir. 1977)..................... .......... ........ 16
United States v. Williams, 499 F.2d 52, 56 (1st

Cir. 1974) ......................... ............ ................ ............  14
Waukesha Engine Division v. Dept, of Ind., 619

F. Supp. 1310 (W.D.Wis. 1985)........................... 11
Wiggins v. Spector Motor Freight System, 583 

F.2d 882 (6th Cir. 1978).......................................  16
Statutes and Rules Cited:

Labor Management Relations Act
§ 301, 29 U.S.C. § 185.... ................................8, 9,10,11

Title VII of the Civil Rights Act of 1964
42 U.S.C. § 2000(e) et seq.......... ......................  3, 10
§ 703(h), 42 U.S.C. 2000(e)-2(h) ..................  17

Sup. Ct. R. 17 ............................................... ......... ......... 7, 15
Sup. Ct. R. 19 (1970) ........... ............ ................ ......... 15
Fed. R. of App. p. 40 ............ ......................................... 13, 14
Michigan Elliott Larsen Act

M.C.L.A. § 37.2101 et seq,....,.................... ............ 5, 9
§ 204, M.C.L.A. § 37.2204 .............. ......................  3
§ 211, M.C.L.A. § 37-2211................ ............4,15, 16, 17



I n  T h e

Ihtjjm tt? (Emtrl &f tip llxxxUh BttxUn
October T e r m , 1989

No. 89-290

F rances J o nes, Beverly  H arder, 
E leanor  Murray, L inda  N ic k e l , and  

Mary R u a n e ,
Petitioners,

v.

Truck  Drivers L ocal U n io n  N o. 299,
Respondent.

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioners are former office clerical employees of 
Square Deal Cartage Company in Detroit which, prior 
to its sale to Cassens Transport, Inc. in August of 1977, 
engaged in the transportation of automobiles to local 
dealerships (App. p. 49a).1

1 References to “App. p.” are to the appendix to the Petition for 
Writ of Certiorari in this matter.



2

Employees at Square Deal were represented by re­
spondent Truck Drivers Local 299 in three seniority 
units: a combined drivers and yard unit, a garage unit 
and an office unit (App. p. 50a). At the time of the 
merger, Cassens had drivers and yard workers also rep­
resented by the respondent, but had no garage workers 
and its office workers were unrepresented and located 
at the company headquarters in Illinois (App. p. 50a).

Petitioners’ employment at Square Deal was covered by 
the National Master Auto Transporters Agreement and 
Michigan Officers Supplement.2 Under the agreement and 
supplement, office workers constituted a separate senior­
ity unit. A senior laid off office employee could exercise 
seniority rights to gain employment at a different office 
but could not “cross bump” workers in the other non­
office seniority units. (App. p. 59a). In the event of 
merger, the agreement provided a procedure for combina­
tion of seniority lists for like units, which maintained 
the separate unit system (App. p. 60a).3 As a result, at 
the time of merger, the driver and yard units which 
existed at the two companies were merged. But, since 
there was no office unit at Cassens, petitioners were left 
jobless when their jobs were eliminated (App. p. 50a). 
Petitioners’ efforts and those of their union to persuade 
Cassens management to retain them in some capacity 
were unsuccessful (App. p. 52a).

Petitioners initially brought this action against Cas­
sens Transport and Respondent Teamsters Local 299, in 
the Circuit Court of Wayne County, Michigan. Peti­
tioners’ complaint alleges that they sought “bidding

2 The National Master Auto Transporters Agreement shall here­
inafter be referred to as the “NMATA.”

8 Petitioners do not contest the court of appeals’ construction of 
labor agreement as establishing a separate seniority unit system.



3

rights” at Cassens “in accordance with the seniority they 
had as employees of Square Deal” and that Local 299 
failed to represent their interests in obtaining rights to 
yard jobs in negotiations or through the grievance pro­
cedure (App. p. 51a). This, petitioners maintained, was 
violative of state and federal law and denied petitioners 
equal opportunity in employment (App. p. 51a).

Respondent removed the action to the United States 
District Court for the Eastern District Court, asserting 
federal question jurisdiction under Section 301 of the 
Labor Management Relations Act. 29 U.S.C. § 185. After 
the district court’s initial decision herein, petitioners set­
tled their claims against Cassens Transport. On appeal, 
the Sixth Circuit Court of Appeals dismissed petitioners’ 
federal claims against the union and remanded the pen­
dent state claims. Jones v. Truck Drivers Local 229, 748 
F.2d 1983 (6th Cir. 1984).

Following remand, the district court issued a second 
decision on September 17, 1985. Following the rationale 
of petitioners’ pleadings, the district court construed the 
applicable labor agreements as providing cross bumping 
rights to petitioners (App. pp. 8a-14a). On the basis of 
its erroneous contract construction, the district court con­
cluded that the union breached its duty of fair represen­
tation by failing to obtain cross bumping rights for peti­
tioners (App. pp. 28a-31a). Such a breach of the duty 
of fair representation the court concluded violated Title 
VII and in turn the Elliott Larsen Act, M.C.L.A. 
§ 37.2204(a), (App. p. 31a).

By decision issued February 3, 1988, the court of ap­
peals for the Sixth Circuit reversed the district court’s 
construction of the collective bargaining agreement, hold­
ing that the National Master Auto Transport Agreement 
and its supplements provided for separate bargaining 
unit seniority system which was protected by Michigan



4

law, M.C.L.A. § 37.2211. That system required that the 
union deal with petitioners in a separate unit with no 
right to transfer (App. pp. 59a-61a). The court of ap­
peals held that a claim of sex discrimination against a 
union for failure to represent is governed by federal law. 
Additionally, because interpretation of the contract was 
necessary to determine the seniority and bargaining unit 
rights which petitioners sought, their claims were pre­
empted by federal law (App. p. 57a).

Following issuance of the court of appeals’ decision, 
petitioners filed a petition for rehearing en banc which 
was denied by the original panel on April 29, 1988. Two 
weeks later, on May 16, 1988, petitioners for the first 
time moved the court to stay proceedings pending the 
decision of the United States Supreme Court in Lingle 
v. Norge Division of Magic Chef, Inc., cert, granted 108 
S.Ct. 226 (1987).

After the Supreme Court issued its decision in Lingle
v. Norge Division of Magic Chef, In c .,----- U.S. -------
108 S.Ct. 1877 (1988), the Sixth Circuit requested the 
parties submit additional briefs concerning the applica­
tion of Lingle to the present case (App. pp. 92a-93a). 
Thereafter, on March 21, 1989, the court denied the mo­
tion to reconsider further in light of Lingle (App. pp. 
94a-95a). Because of a misreference in the earlier order 
to appellants rather than appellees, an additional order 
was issued by the court on April 17, 1989, which denied 
reconsideration “after our examination of the parties’ 
briefs regarding the panel’s authority to consider and 
Lingle’s impact on the present case” (App. p. 97a).4

4 Petitioners fail to acknowledge that the court’s denial of re­
consideration in light of Lingle was premised both on its analysis 
of Lingle’s impact on the present case as. well as its lack of au­
thority to entertain petitioners’ motion.



5

SUMMARY OF ARGUMENT

The petition herein seeks review of a court of appeals’ 
decision that petitioners’ state law claim is preempted 
because it is dependent upon interpretation of a collective 
bargaining agreement. That decision follows the holding 
of several decisions issuing from this Court. The quesr 
tion therefore does not present an issue warranting 
review.

Additionally, petitioners seek review of the court of 
appeals’ application of the Michigan Elliott Larsen Act 
to the facts of the present case. The application of state 
law turning on the analysis of fact is not appropriately re­
viewed by this Court. Moreover, the decision of the court 
below is entirely correct.

The petition for writ of certiorari should therefore be 
denied.

REASONS FOR DENYING THE WRIT

I. THE COURT OF APPEALS’ DENIAL OF RECON­
SIDERATION FURTHER IN LIGHT OF LINGLE v. 
NORGE DIVISION OF MAGIC CHEF, INC. IS COR­
RECT AND DOES NOT WARRANT REVIEW.

A. Neither The Decision Nor The Record Below Raises 
The Question Presented In The Petition.

In raising the application of Lingle v. Norge Division 
of Magic Chef, petitioners fail to disclose that their claims 
against the union are premised directly on alleged sen­
iority and bidding rights which are dependent on an 
interpretation of the applicable labor agreement.

Petitioners’ complaint herein seeks seniority and bid­
ding rights which, petitioners maintain, should have been 
provided to them through a negotiated labor agreement.



6

COUNT 1:
11. Defendants, jointly and severally, negotiated an 
agreement to allow employees of Square Deal Cart­
age Company to bid on jobs at Cassens Transport 
in accordance with the seniority they had as em­
ployees of Square Deal Transport. That said agree­
ment excluded Plaintiffs from such bidding rights. 
(emphasis added).

With elimination of their office jobs at Square Deal, 
petitioners sought jobs as “yard workers” at Cassens “in 
accordance with their seniority.” 5 Thus, petitioners 
sought cross bumping rights from the office unit to the 
yard unit.* 7 8

It has long been recognized that seniority and bidding 
rights, such as petitioners claim herein, exist only to the 
extent they are established by a collective bargaining 
agreement, Charlton v. Norge Division, Borg Warner 
Cory., 407 F.2d 1062 (6th Cir. 1969), cert, denied, 369 
U.S. 871, citing Ford Motor Company v. Huffman, 345 
U.S. 330 (1953). The seniority rights which form the 
basis of petitioners’ claim, then, are completely dependent 
on contract construction.

B The Complaint states:
7. On August 26, 1977, Plaintiffs were informed that their 
particular jobs at Square Deal Cartage Co. were being elimi­
nated.
8. On or About August 30, 1987, Plaintiffs requested employ­
ment with Defendant Company, in accordance with their 
seniority, as “yard” workers. Defendant Company refused said 
request solely because Plaintiffs were women.

6 As the court of appeals explains, cross bumping rights were not 
provided by the NMATA during mergers or at any other time. 

The contract does not envision that the event of a merger will 
allow office employees to do what they could not otherwise: 
cross-bump less senior employees from different bargaining 
units.

(App. p. 60a).



7

Here, the court of appeals found that petitioners’ claims 
were dependent on interpretation of the labor agreement 
and were therefore preempted.

Interpretation of the contract was necessary to de­
termine seniority and bargaining rights in this case. 
Interpretation of the contract was also inextricably 
intertwined in the union’s delicate problem of repre- 
senting different bargaining units in the merger of 
the operations after Cassens’ acquisition and merger. 
Interpretation and enforcement of the collective bar­
gaining agreement is essentially and primarily a 
matter of federal labor law.

(App. p 57a) .7

The issue raised in this case, then, is whether a state 
claim which is dependent upon interpretation of a labor 
agreement is preempted. As set forth below, the conclu­
sion that contractually dependent claims are preempted is 
required by Allis-Chalmers v. Lueck, 471 U.S. 202 (1985) 
and is entirely consistent with Lingle v. Norge Division of
Magic Chef, Inc., ----- U.S. ------- 108 S.Ct. 1877 (1988).
This case therefore fails to present “an important ques­
tion of federal law which has not been settled by this 
court” under Sup. Ct. R. 17.1 (c) .8

7 While the Sixth Circuit decision herein makes reference to an 
express non-discrimination section in the parties’ labor agreement, 
the court’s conclusion concerning preemption is not dependent on 
that setcion of the agreement. After mentioning the discrimination 
clause, the court goes on to explain that it was the necessary inter­
pretation of the collective bargaining agreement which required 
preemption (App. p. 57a).

8 Sup. Ct. R. 17 provides:
1. A review on writ on certiorari is not a matter of right, 
but of judicial discretion, and will be granted only when there 
are special and important reasons therefor. The following, 
while neither controlling nor fully measuring the Court’s dis-



8

B. The Court Of Appeals Herein Correctly Held That
Norge Division Of Magic Chef, Inc., —— U.S, -----
108 S.Ct. 1877 (1988) Did Not Impact On Its Deci­
sion Herein.

The court of appeals held that because petitioners’ 
claims to cross over seniority rights at Cassens required 
construction of the NMATA and supplements, they were 
preempted. This conclusion follows directly from the 
legal principles articulated in Electrical Workers v.
Hechler, ------  U.S. ------ 107 S.Ct. 2161 (1987) and
Allis-Chalmers v. Lueck, 471 U.S. 202 (1985). It is not 
altered, but rather confirmed by Lingle v. Norge Division
of Magic Chef, I n c . ,----- U.S. -------- 108 S.Ct, 1877
(1988).

In Lingle v. Norge Division of Magic Chef, supra, the 
Supreme Court held that a state law claim which is 
established without reference to a collective bargaining 
agreement is not preempted by federal law under § 301 
of Labor Management Relations Act. In reaching its 
conclusion, the court reaffirmed its holding in Allis- 
Chalmers Corp. v. Lueck, supra, that state claims which 
are dependent on construction of a collective bargaining 
agreement are necessarily preempted.

Lueck faithfully applied the principle of Section 301 
preemption developed in Lucas Flour: if the resolu­
tion of a state claim depended upon the meaning of 
a collective bargaining agreement, the application of 
state law (which might lead to inconsistent results 
such since there could be as many state law prin­
ciples as there are states) is preempted on federal

cretion, indicate the character of reasoning that will be con­
sidered. . . .

(c) When a state court or a federal court of appeals has 
decided an important question of federal law which has not 
been, but should be, settled by this. Court, or has decided a 
federal question in a way in conflict with applicable decisions 
of this Court.



9

labor law principles—necessarily uniform throughout 
the nation—must be employed to resolve the dispute.

108 S.C.t at 1881. Thus, the Court concluded “judges can 
determine questions of state law involving labor manage­
ment relations only if such questions do not require con­
struing the collective bargaining agreements.” (emphasis 
added) 108 S.Ct. at 1884.

Here, the primary claim petitioners raise against the 
union is that they should have obtained cross bumping 
rights “in accordance with seniority.” Those rights are 
established by a national labor agreement, the NMATA, 
and its supplements. Uniformity of contract interpreta­
tion requires absolute preemption of such claims. As this 
Court explained in Teamsters v. Lucas Flour, 369 U.S. 
95 (1962),

More important, the subject matter of § 301(a)
‘is peculiarly one that calls for uniform law.’ . . . 
The possibility that individual contract terms might 
have different meanings under state and federal law 
would inevitably exert a disruptive influence upon 
both the negotiation and administration of collective 
agreements.

369 U.S. at 103. If the Michigan Elliott Larsen Act could 
be utilized to alter employees’ bidding and seniority rights 
under the NMATA, negotiation and administration of 
such national agreements would be impossible.

Here, preemption is mandated not only because peti­
tioners’ state law claim is dependent on interpretation 
of a labor agreement, but additionally because petition­
ers’ claims are essentially federal claims for breach of 
the duty of fair representation.

We believe that Maynard v. Revere Copper Products, 
Inc., 773 F.2d 733 (6th Cir. 1985), is controlling 
here. The plaintiffs’ action under state law is essen­
tially the same as their claims under federal law 
against the union. . . . There were no new rights



10

created under the Michigan law nor any new duty 
imposed upon the union not already present under 
existing federal law. As in Maynard, essentially the 
same claim for failure to represent was previously 
found to be time barred under federal law which ap­
plied. This kind of claim, a failure to represent 
fairly, is essentially a matter of federal law, ‘an area 
of labor law which has been so fully occupied by 
Congress’ as to foreclose or to preempt state regula­
tion. Id. at 735.

(App. pp. 57a-58a).
It is the respondent’s view that the only claims raised 

by petitioners against the union are those arising from 
their claim to cross bump from the Square Deal office to 
Cassens’ yard work which, of necessity, require inter­
pretation of the applicable labor agreement. If, arguendo, 
petitioners have alleged claims 'which are independent of 
the labor agreement, the court of appeals’ decision has 
preserved such claims by remanding this action to the 
district court for determination of liability and “damages, 
if any” attributable to the union’s alleged misconduct 
but not resulting from “implementation of the merger 
under the terms of the existing collective bargaining 
agreement” (App. p. 62a). Thus the court of appeals’ 
decision, if anything, anticipates the precise distinction 
articulated in Lingle. “Judges can determine questions 
of state law involving labor management relations only if 
such questions do not require constrained collective bar­
gaining agreements.” 108 S.Ct. at 1884.

The preemption of petitioners’ state law claims to cross 
over seniority is not altered by petitioners’ articulation of 
those claims under a state anti-discrimination law which 
is coordinated with Title VII of the Civil Rights Act of 
1964. As this Court found in Lingle, the distinction be­
tween state anti-discrimination claims and others is “un­
necessary for determining whether § 301 preempts.” 108 
S.Ct. at 1885. The critical question is whether or not the



li

claim is dependent on interpretation of a labor agree­
ment. Since petitioners’ claim for cross-over seniority 
rights is based on interpretation of the seniority and 
merger provisions of the NMATA and supplement, it is 
therefore preempted.9

The task of determining whether preemption is 
compelled is the same whether applied to state anti- 
discrimination laws or any other state causes of action: 
“to ascertain Congress’ intent” in enacting the federal 
statute. Shaw v. Delta Air Lines, 463 U.S. 85, 95 
(1983).10 As the court explained in Allis-Chalmers, Con­
gressional intent in enacting § 301 was to preempt inter­
pretation of labor agreements absolutely. “In this situa­
tion, the balancing of state and federal interests required 
by Garmon preemption are irrelevant, since Congress, 
acting within its power under the Commerce Clause has 
provided the federal law must prevail.” 85 L.Ed.2d at 217, 
footnote 9. Thus, state claims which require interpreta­
tion of a labor agreement are preempted without regard 
to the nature of the state law involved.11

9 The vast majority of state discrimination claims of employees 
covered by labor agreements will likely not require interpretation 
of labor agreements. It is only in the rare case, as here, that the 
claim of the employee is. based on a right or duty which is estab­
lished exclusively by contract that the claim is preempted. Electri­
cal Workers v. Heckler, supra.

10 It follows that state discrimination laws are1 preempted by 
federal law in accordance with the same standards generally ap­
plicable to the statutory scheme involved. Maynard v. Revere, supra, 
Waukesha Engine Division v. Dept, of Ind., 619 F. Supp. 1310 (W.D. 
Wis. 1985), BLE v. Industrial Comm., 604 F. Supp. 1417 (D. Utah, 
1985).

11 For example, in -Jackson v. Liquid, Carbonic Corp., 863 F.2d 
111 cert. den. 6/12/89, 57 U.S.L.W. 3812, the First Circuit found 
a claim for violation of the right to privacy under Mass. Civil 
Rights Act was preempted because the claim required interpreta­
tion of a collective bargaining agreement to establish the employees 
bona fide expectations of privacy. See also Laivs v. Cahnat, 852 
F.2d 430 (9th Cir. 1988),



12

Petitioners’ reliance on Caterpillar v. Williams, ------
U.S. ——, 107 S.Ct 2425 (1987) is similarly misplaced. 
Initially, it must be noted that the language of petitioners’ 
complaint establishes that their claim is for rights “in 
accordance with seniority” established by a collective bar­
gaining agreement. After ten years and three appeals, it 
is too late for petitioners to assert their claims are not 
premised on a labor agreement. Electrical Workers v. 
Hechler, supra, 107 S.Ct. at 2168, footnote 5.

Moreover, even if, arguendo, the issue of interpreta­
tion arose only in defense, as petitioners now suggest, 
the principles of preemtpion would apply with equal force. 
In Caterpillar v. Williams, this Court held that a federal 
issue raised only in defense did not support removal.12 
The court specifically observed “we intimate no view on 
the merits of this or any of the preemption arguments 
discussed above.” Id. at 2433, footnote 13. The Court noted 
that while the assertion of a federal issue in defense did 
not provide the basis for removal, it might well require a 
holding of § 301 preemption by the state court.

It is by now axiomatic that state law claims which 
require interpretation of a labor agreement are pre­
empted. Douglas v. American Information Technologies, 
Corp., 877 F.2d 565 (7th Cir. 1989); Delapp v. Conti­
nental Can, 868 F.2d 1073 (9th Cir. 1989) ; Jackson v. 
Liquid Carbonic Corp., supra; Hanks v. General Motors, 
859 F.2d 67 (8th Cir. 1988); Newberry v. Pacific Racing 
Association, 854 F.2d 1142 (9th Cir. 1988) ; Laws v. 
Calmat, supra; Knafel v. Pepsi-Cola Bottlers of Akron, 
Inc., 850 F.2d 1155 (6th Cir. 1988).

12 Additionally, in Caterpillar the agreement under which plain­
tiffs’ claims arose was not a collective bargaining agreement under 
§ 301 but an individual employment contract between individual 
employees and the employer. Here the “agreement” referred to in 
the complaint is between the employer and union and is covered 
by § 301. Complaint fj 11, supra.



13

This case is but one more case in which state claims 
which depend on a labor agreement are preempted un­
der the holding of Electrical Workers v. Hechler, supra, 
and Allis-Chalmers v. Lueck, supra. The court of appeals’ 
decision is not altered but only confirmed by this court’s 
decision in Lingle v. Norge Division of Magic Chef, supra. 
There is, therefore, no basis for review.

C. Petitioners Failed To Timely Raise The Application 
Of Lingle v. Norge Division Of Magic Chef, Inc., 
---- - U .S .----- 108 S.Ct, 1877 (1988) In The Proceed­
ing Before The Court Of Appeals,

Additionally, petitioners herein failed to timely pre­
serve the question which is central to their petition for 
certiorari, the application of Lingle v. Norge Division of 
Magic Chef, Inc., ------ U.S. ------108 S.Ct. 1877 (1988).

The court of appeals issued its decision herein on Feb­
ruary 3, 1988. At the time Lingle v. Norge Division of 
Magic Chef, Inc., 823 F.2d 1031 (7th Cir. 1987) had 
been pending before this Court for more than three 
months, certiorari having been granted on October 13, 
1987. 108 S.Ct. 226. Petitioner filed a timely petition 
for rehearing seeking reversal of the court’s decision that 
plaintiffs’ claims were preempted, but did not request a 
stay pending the anticipated decision in Lingle. On April 
29, 1988, this court issued its decision denying plaintiffs’ 
petition for rehearing en banc.

On May 12, 1988, plaintiffs filed a motion which, for 
the first time, requested stay of proceedings pending the 
decision of Lingle which had been pending before this 
Court since well before the court of appeals issued its 
decision or its denial of rehearing herein.

Fed. R. of App. P. 40 requires the petitions for re­
hearing be filed within 14 days of entry of judgment.18 13

13 Rule 40. (a) provides, “A petition for rehearing may be filed 
within 14 days after entry of judgment unless the time is shortened 
or enlarged by order or by local rule.”



14

Having declined to request a stay when certiorari was 
granted or even in the petition for rehearing, petitioners’ 
motion raised for the first time after the denial of their 
petition for rehearing was untimely.

If parties were permitted to raise additional issues 
after petition for rehearing had been denied, there would 
be no practical end to appellant consideration. New court 
decisions having some peripheral or arguable relevance 
could provide a basis for dilatory request for reconsidera­
tion. “F.R.A.P. 40 was not promulgated as a crutch for 
dilatory counsel.” United States v. Doe, 455 F.2d 753„ 
762 (1st Cir. 1972), vacated on other grounds sub nom. 
Gravel v. United States, 408 U.S. 606 (1972) ; United 
States v. Williams, 499 F.2d 52, 56 (1st Cir. 1974).

The court of appeals’ decision to deny reconsideration 
in light of Lingle is correct, both because the decision has 
no impact on the present case and was not timely raised. 
There is no special or important reason warranting its 
review. II.

II. THE COURT OF APPEALS’ DECISION THAT THE 
CONTRACTUALLY MANDATED SEPARATE UNIT 
SENIORITY SYSTEM WAS BONA FIDE UNDER 
THE MICHIGAN ELLIOT LARSEN ACT M.C.L.A. 
§ 37.2211 IS CORRECT AND DOES NOT WARRANT 
REVIEW.
A. The Question Raised By The Petition Does Not 

Warrant Review.

Petitioners ask this Court to interpret a Michigan state 
law in light of their allegations that the evidence here 
does not meet a four-part test for a bona fide seniority 
system under federal law. In so doing, petitioners ask 
the court to resolve conflicting interpretations of the evi­
dence in their favor. This is not an appropriate basis 
for review by this Court. National Labor Relations Board 
v. Pittsburgh Steamship Company, 340 U.S. 498, 503 
(1951). Additionally, the petition seeks review of a ques-



15

tion of state law. Slip. Ct. R. 17 makes no reference to 
such review.14 There is simply no valid basis for the 
review sought by the petition.

The fact petitioners seek review of the seniority sys­
tem itself underscores the premise of petitioners’ claim: 
that the contractual seniority system be reconstructed 
to permit their cross bumping between bargaining units. 
Such a claim is preempted by federal law. Alternatively, 
it is foreclosed by the court of appeals’ construction of 
the existing labor agreement. That construction cannot 
be indirectly reversed at this juncture by rearguing the 
application of state law to the particular facts of this 
case.

B. The Court Of Appeals’ Decision Is Correct.
The court of appeals correctly held that the Michigan 

Elliott Larsen Act, M.C.L.A. § 37.2211 protected the 
separate seniority system established by the NMATA as 
applied to the Square Deal-Cassens merger.

Petitioners assert that the seniority system in effect at 
Square Deal permitted cross bumping between positions 
held by men and otherwise favored men over women. 
These are issues of fact and are therefore not the basis 
of review by this Court. Additionally, the decision of the 
court of appeals carefully addressed the very issues peti­
tioners raise. The court specifically found that there was 
no evidence of cross bumping between the office and other 
bargaining units, rather, the prohibition of cross bump­
ing was maintained consistent with the labor agreement.

[I] t is clear that the office unit was never allowed to 
cross bump into non-office jobs. Custom and practice 
therefore reinforced the clear language of the con­
tract provision in prohibiting office workers from

14 Notably, the language of Rule 17 deletes the references in its 
predecessor, Rule 19, to review when a federal court of appeals 
“has decided an important state or territorial qusetion in a way 
in conflict with applicable or state or territorial law.” Sup. Ct. 
R . 19 (1970).



16

cross bumping, and the office workers had no right 
to bid for non-office jobs either before or after the 
merger.

(App. p. 60a).
Once it is recognized that the office bargaining unit 

maintained separate seniority, there is no basis for the 
claims that the seniority system fails to meet the James 
v. Stockham Valve & Fitting Co., 559 F.2d 310 (5th Cir. 
1977) cert. den. 434 U.S. 1034 (1978) standard. The 
system did operate to discourage all employees equally 
from transferring between units. The office workers did 
constitute a separate bargining unit (App. p. 59a). There 
is no holding below nor evidence that the system had its 
genesis or was maintained for an illegal purpoise.15 * *

In fact, the separate unit seniority system at issue is 
established by the NMATA and its supplements which, 
together with its sister agreement, the National Master 
Freight Agreement, have been repeatedly recognized as 
bona fide. Teamsters v. United States, 431 U.S. 324 
(1978) ; Salinas v. Roadtvay Express, Inc., 735 F.2d 1574 
(5th Cir. 1984); Freeman v. Motor Convoy, 700 F.2d 
1339 (11th Cir. 1983) ; Wiggins v. Spector Motor Freight 
System, 583 F.2d 882 (6th Cir. 1978) ; United States v. 
East Texas Motor Freight, 564 F.2d 179 (5th Cir. 1977). 
See also Salinas v. Roadway Express, Inc., 802 F.2d 787, 
789 (5th Cir. 1986).

Petitioners’ argument reduces to the claim that women 
who worked in the office were not as well compensated 
as drivers and yard workers. However, such differentials 
resulting from a separate seniority unit system are pro­
tected from challenge under the Michigan Elliott Larsen 
Act by M.C.L.A. § 37.2211, just as such differentials are

15 As the court of appeals noted, “there is nothing in the record 
that plaintiffs’ opposed adoption of the collective bargaining agree­
ment when consumated by the employer and the union. No griev­
ance was filed by plaintiffs prior to effectuation of the merger.”
(App. p. 58a).



17

protected by § 703(h) of Title VII of the Civil Rights 
Act of 1964. 42 U.S.C. 2000 (e) -2 (h) .1S As the court of 
appeals noted here, “the defense interposed by a bona fide 
seniority system would allow differences in compensation 
or terms, conditions or privileges of employment arising 
from the operation of seniority system.” (App. p. 60a- 
61a). This holding is consistent with principles estab­
lished by this court concerning parallel protection of 
seniority systems provided under § 703(h) Title VII of 
the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e) -2 (h). 
Teamsters v. United States, 431 U.S. 324 (1977); Ameri­
can Tobacco v. Patterson, 456 U.S. 63 (1982); Pullman- 
Standard v. Swint, 456 U.S. 273 (1982).

The court of appeals’ holding that separate unit 
seniority system mandated by the NMATA was protected 
by M.C.L.A. § 37.2211 is correct and does not raise any 
issue warranting review.

CONCLUSION

For the foregoing reasons, the petition for writ of 
certiorari should be denied.

Respectfully submitted,

Gerry M. Miller 
Marianne Goldstein R obbins 
P reviant, Goldberg, Uelm en ,

Gratz, Miller & Brueggeman, S.C. 
P.O. Box 92099 
788 North Jefferson Street 
Milwaukee, WI 53202 
(414) 271-4500 
Attorneys for Respondent 18

18 M.C.L.A. § 37.2211 provides, “Notwithstanding any other pro­
vision of this article, it shall not be an unlawful employment prac­
tice for an employer to apply different standards of compensation 
where different terms, conditions or privileges, of employment pur­
suant to a bona fide seniority or merit system.”