International Longshoremen Association v. Davis

• Decision Date: 27 May 1986
• Docket Number: A,No. 85-217,AFL-CI,85-217
• Citation: 106 S.Ct. 1904,90 L.Ed.2d 389,476 U.S. 380
• Parties: INTERNATIONAL LONGSHOREMEN'S ASSOCIATION,ppellant v. Larry DAVIS
• Court: U.S. Supreme Court

476 U.S. 380

106 S.Ct. 1904

90 L.Ed.2d 389

INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO, Appellant

v Larry DAVIS.

No. 85-217.

Argued Feb. 25, 1986.

Decided May 27, 1986.

Syllabus

Appellee was formerly employed as a ship superintendent for a stevedoring company. When he, with others, attempted to organize the company's ship superintendents and to affiliate with appellant Union, a Union official allegedly assured them that the union would get them their jobs back if they were discharged for participating in Union-related activities. After he was discharged apparently because of such activities, appellee filed a suit against appellant in an Alabama Circuit Court, alleging fraud and misrepresentation under an Alabama statute. The case proceeded to trial, and a jury entered a verdict in appellee's favor. Throughout the trial, appellant defended the suit on the merits, and not until its motion for judgment notwithstanding the verdict did it claim that the Circuit Court lacked jurisdiction because the suit was pre-empted by the National Labor Relations Act (NLRA). The Circuit Court denied the motion and entered judgment on the verdict. The Alabama Supreme Court affirmed, holding that the pre-emption claim was a waivable defense that was required to be affirmatively pleaded under Alabama law, and that since it was not so pleaded, it was deemed waived.

Held:

1. The Alabama Supreme Court's holding that appellant had waived its pre-emption claim by noncompliance with state procedural rules governing affirmative defenses did not present an independent and adequate state ground supporting the court's judgment, and the court erred in declining to address that claim on the merits. Pp. 387-393.

2. The general standard for determining whether state proceedings are pre-empted by the NLRA, i.e., whether the conduct at issue was arguably protected or prohibited by the NLRA, San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), is applicable to this case. Where state law is pre-empted by the NLRA under Garmon and its progeny, the state courts lack the power to adjudicate the claims that trigger pre-emption. Here, if appellee was arguably an employee, rather than a supervisor, the pre-emption issue should be initially decided by the National Labor Relations Board (NLRB), not the state courts. Because the pre-emption issue turns on appellee's status, the appellant's pre-emption claim must be supported by a showing sufficient to permit the NLRB to find that appellee was an employee. On the record, appellant has made no such showing. The mere lack of a conclusive determination by the NLRB as to appellee's status does not make out an arguable case for pre-emption. Pp. 394-399.

470 So.2d 1215 (Ala.1985), affirmed.

WHITE, J., delivered the opinion of the Court, in Part I of which all other Members joined, in Part II of which BURGER, C.J., and BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, and in Part III of which all other Members, except BLACKMUN, J., joined. REHNQUIST, J., filed an opinion concurring in part and concurring in the judgment, in which POWELL, STEVENS, and O'CONNOR, JJ., joined, post, p. 399. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, post, p. 403.

Charles R. Goldburg, New York City, for appellant.

Bayless E. Biles, Bay Minette, Ala., for appellee.

Justice WHITE delivered the opinion of the Court.

The opinion in San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), set forth a general standard for determining when state proceedings or regulations are pre-empted by the provisions of the National Labor Relations Act (NLRA or Act), see 29 U.S.C. § 151 et seq. (1982 ed. and Supp. II): Subject to exception only in limited circumstances, "[w]hen an activity is arguably subject to § 7 or § 8 of the Act [29 U.S.C. § 157 or § 158], the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted." 359 U.S., at 245, 79 S.Ct., at 780. This general standard has been applied in a multitude of cases decided since Garmon, and it must be applied again today. Before addressing that question, however, we must consider the very nature of such pre-emption—whether Garmon pre-emption is in the nature of an affirmative de- fense that must be asserted in the trial court or be considered forever waived or whether it is in the nature of a challenge to a court's power to adjudicate that may be raised at any time.

I

Appellee Larry Davis was formerly employed by Ryan-Walsh Stevedoring Co. in Mobile, Alabama. At the times relevant to the events that gave rise to this suit, he was a ship superintendent or trainee ship superintendent. The ship superintendents apparently served as the immediate superiors of the longshoremen employed by Ryan-Walsh. They were on salary, however, and their compensation was generally lower than that received by the longshoremen, who worked on an hourly basis.

In early 1981, Ben Trione, one of the ship superintendents who worked for Ryan-Walsh, contacted appellant International Longshoremen's Association (ILA or Union), a union that represents longshoremen and other employees on the waterfront, to discuss the possibility of organizing the superintendents and affiliating with the Union. Although the parties here dispute the content of the conversations that occurred at this stage between Trione and the ILA representatives regarding the ship superintendents and their eligibility for union membership, it is undisputed that a meeting of the superintendents was organized by Trione and attended by Benny Holland, an ILA official from Houston, Texas.

At this meeting, several of the superintendents expressed a fear of being discharged for participating in union-related activities. According to Davis' witnesses, Holland's response to this was to reassure them that the Union would get them their jobs back with backpay if that happened. According to Holland, however, Holland's response was that they would be protected in that manner only if they were determined not to be supervisors under the Act and that he did not know whether or not they would be considered supervisors.¹ Holland further testified that he had submitted this issue to the Union's lawyers and had not received a definitive opinion from them by the time of the meeting. The meeting, according to all witnesses, resulted in a number of the ship superintendents, including Davis, signing pledge cards and a union charter application with the ILA.²

On the day following the organizational meeting, Ryan-Walsh fired Trione. Trione contacted the ILA, which supplied him with an attorney. The attorney filed an unfair labor practice charge against Ryan-Walsh with the National Labor Relations Board, alleging that Trione was an employee under the Act and that Ryan-Walsh had violated § 8(a)(1) and § 8(a)(3) of the Act by discharging him for participating in union activities. See 29 U.S.C. §§ 158(a)(1), (3).³ The NLRB's Regional Director, however, determined that Trione was a supervisor under the Act and declined to issue a complaint.⁴ Trione did not, as he had a right to do, appeal this determination to the NLRB General Counsel. See 29 CFR § 102.19 (1985). Shortly thereafter, Davis was also dis- charged by Ryan-Walsh, apparently for his continued efforts to organize the ship superintendents and to join the Union.

In response to his discharge, Davis filed this suit against the ILA in the Circuit Court of Mobile County, alleging fraud and misrepresentation under Ala.Code § 6-5-101 (1975).⁵ The case proceeded to trial, and a jury entered a verdict in Davis' favor in the amount of $75,000. Throughout the trial, the Union defended the suit on the merits, raising no issue that the suit was pre-empted by the NLRA. In its motion for judgment notwithstanding the verdict, however, the ILA raised for the first time a claim that the state court lacked jurisdiction over the case because the field had "been preempted by federal law and federal jurisdiction." App. 96a. The Circuit Court denied the Union's motion without opinion and entered judgment on the jury's verdict.

On appeal to the Supreme Court of Alabama, the ILA argued that pre-emption was not a waivable defense and that the state fraud and misrepresentation action was pre-empted under Garmon. Although acknowledging that other state courts had adopted the ILA's position that NLRA pre-emption was nonwaivable,⁶ the Alabama court held that "[i]t is not the circuit court's subject matter jurisdiction to adjudicate a damage claim for the tort of fraud even if it arises in the context of a labor-related dispute—that is pre-empted. Rather, it is the state court's exercise of that power that is subject to preemption." 470 So.2d 1215, 1216 (1985). The court's view was that as a state court of general jurisdiction the Circuit Court had had subject-matter jurisdiction over this ordinary tort claim for damages. As a waivable defense, the pre-emption claim was required under Alabama law to be affirmatively pleaded. Since it was not so pleaded, it was deemed waived.⁷

The Alabama Supreme Court, although holding that the ILA's pre-emption claim had been waived, stated in a footnote that if it had had occasion to reach the merits, it would have found no pre-emption:

"The instant facts fall squarely within the 'peripheral concern' exception to federal preemption of state jurisdiction of labor-related disputes. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 243-44 [79 S.Ct. 773, 778-79, 3 L.Ed.2d 775] (1959). The National Labor Relations Board has already determined that an employer's supervisors are not protected by the Labor Management Relations Act. Thus, in this case, [Davis] has no remedy before the NLRB, and this dispute, although somewhat labor-related, is, at most, only of ...