MEMORANDUM AND ORDER
Upon consideration of Boston University's petition for rehearing, it is ordered that the petition be denied.
The University makes three arguments in its petition. First it argues that the court failed to consider the cumulative effect of four evidentiary errors by the district court, as well as the effect of a ruling by the district court which we stated may have been error, but if so then harmless. Contrary to the University's contention, the court has already considered the collective impact of these rulings and concluded that the University was not prejudiced. Although the opinion did not expressly state that the cumulative impact of the errors would in all likelihood have not affected the jury verdict, we obviously implied this. In each case, the opinion stated essentially that any effect on the jury would be negligible.
The University's second argument has to do with whether the district court properly allowed the breach of contract claim to go to the jury. In the Brown opinion, we declined to address the University's argument that by removing tenure from the grievance procedure, the collective bargaining agreement not only shielded tenure decisions from being grieved but also from judicial review. We based our refusal to consider the argument upon the University's failure to raise it prior to its motion for Judgment NOV. The University does not now protest our decision on this point. However, it asserts that we improperly failed to address a separate argument, to wit, the argument that Article XI of the Agreement (relied on by Brown and the district court as the basis for a contractual right against sex discrimination) did not create a private contractual right against discrimination, but merely acknowledged the statutory rights of aggrieved faculty to take their claims to appropriate federal and state agencies.
Although the University's petition for rehearing now quotes from the University's appellate briefs in a manner suggesting that, in fact, it did make this argument on appeal, when the quotes are read in context (particularly note 19 in the original brief), they appear to be merely a gloss on the primary argument -- that by removing tenure decisions from the grievance procedure, the Agreement had precluded judicial review of tenure decisions -- rather than a separate argument. This primary argument, as indicated above, we declined to review because it was not timely raised in the district court.
Upon a second look, we remain doubtful that the University's cursory statement in a footnote in its original brief and its "elaboration" in its reply brief, preserved, as a separate point, the argument that Article XI of the Agreement only referenced statutory discrimination remedies. See, e.g., Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983) ("In preparing briefs and arguments, an appellee is entitled to rely on the content of an appellant's brief for the scope of the issues appealed, and appellant generally may not preserve a claim merely by referring to it in a reply brief or at oral argument.").
We further note that this argument was not presented to the district court when the University moved for a directed verdict. The University did make the argument earlier, in its pre-trial motion for partial summary judgment, but failed to renew it in its motion for a directed verdict. Instead, in the latter motion, the University substituted an inconsistent argument to the effect that Brown was barred from suing under the Agreement because she had not exhausted the Agreement's grievance procedure. This replacement of an earlier argument with an inconsistent one would suggest to a district judge that the University had abandoned the former. Coupled with the apparent abandonment is the fact that by failing to present the argument in the directed verdict motion, the University lost the right to rely on it in seeking a Judgment NOV. See Brown, slip op. at 60 n.20. Under all these circumstances, we disagree that this argument is now properly before us. See generally 4 C.J.S., Appeal and Error § 253, at 770 ("a party seeking correction of error must stand or fall on the case which was made in the trial court, and thus it follows that only those objections or grounds of objection which were urged in the trial court, without change and without addition, will be considered on appeal."). Cf. Hale v. Firestone Tire & Rubber Co., 756 F.2d 1322, 1333-34 (8th Cir. 1985) (party whose motion in limine is denied must renew objection at trial and renewal of objection on different grounds does not preserve issue for appellate review).
The University's third argument is that this court erred in holding that the University had waived its argument that section 14(a) of the NLRA1 barred enforcement of the Agreement under either state or federal law by not raising it until after the trial.
The University argues that since the district court did not treat the contract claim as a state contract claim until after the jury verdict, it had neither reason nor opportunity to raise its section 14(a) defense prior to that time. The problem with this argument is that the University had ample reason and opportunity to raise this defense prior to trial. The University's argument -- that enforcement of the Agreement would effectively compel the University to treat individuals defined as supervisors as employees, in violation of section 14(a) -- did not depend on the classification of the breach of contract claim as a state law action. As stated in its original brief, the University's argument was that " any exercise of federal court jurisdiction to enforce the Agreement relied upon by Brown would be contrary to the injunction of Section 14(a) of the Act." (emphasis in original). Thus, the University's section 14(a) defense was available against enforcement of the Agreement under either state or federal law as soon as it became clear that the University's faculty were supervisors -- either in 1980 when the Supreme Court decided NLRB v. Yeshiva University, 444 U.S. 672 (1980), or at least in 1986 when the NLRB ruled in Trustees of Boston University, 281 N.L.R.B. No. 115, that the University's faculty are supervisors. See Brown, slip op. at 49-50, 56.
The University also argues that its defense that section 14(a) preempts state law is jurisdictional and therefore cannot be waived. The Brown opinion addressed and rejected this argument. However, the University has embellished its argument by asserting that under International Longshoremen's Association v. Davis, 476 U.S. 380 (1986), preemption under the National Labor Relations Act "is in the nature of a challenge to the Court's power to adjudicate that may be raised at any time."
Despite this gloss on the argument, it remains without merit. In Davis, the Court did not hold that all preemption under the NLRA is jurisdictional; it held only that Garmon preemption is jurisdictional. Garmon preemption derives from San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), in which the Court held that where a dispute involves "activity [that] is arguably subject to § 7 or § 8 of the [National Labor Relations] Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of interference with national policy is to be averted." Id. at 245. The Court explained in Davis that Garmon preemption "rest[s] on a determination that in enacting the NLRA Congress intended for the Board generally to exercise exclusive jurisdiction in this area." 476 U.S. at 391. The Court further explained that "If there is preemption under Garmon, then state jurisdiction is extinguished." Id. Thus, the Court concluded, Garmon preemption cannot be waived and must be addressed whenever it is raised.
The Davis Court made clear, however, that its holding is limited to disputes over which Congress intended to give the NLRB exclusive jurisdiction.
This conclusion [that Garmon pre-emption is jurisdictional] derives from congressional intent as delineated in our prior decisions. Thus, our decision today does not apply to pre-emption claims generally but only to those pre-emption claims that go to the State's actual adjudicatory or regulatory power as opposed to the State's substantive laws. The nature of any specific pre-emption claim will depend on congressional intent in enacting the particular pre-emption statute.
476 U.S. at 391 n.9. The University's argument is not that the NLRB has exclusive jurisdiction over this dispute. Indeed, since faculty members have been deemed supervisors and not employees, the NLRB plainly would not have jurisdiction over disputes between the University and a member of its faculty. The University's argument is simply that enforcement of the Agreement would violate section 14(a). Thus, the argument would at best establish that section 14(a) preempts state substantive law by rendering the Agreement unenforceable; it would not establish that section 14(a) preempts state or federal court jurisdiction. Accordingly, the argument is not jurisdictional and is not appropriately addressed at this late stage of the lawsuit. See Johnson v. Armored Transport of California, Inc., 813 F.2d 1041, 1043-44 (9th Cir. 1987) (argument that section 301 of the Labor Management Relations Act preempted state law wrongful discharge claim affects only choice of law and not choice of forum and therefore was subject to waiver); Reithmiller v. Blue Cross & Blue Shield of Michigan, 824 F.2d 510, 512 (6th Cir. 1987) ("Plaintiff's argument [that state court's jurisdiction was pre-empted by ERISA] reflects a misunderstanding of the distinction between pre-emption of a state's substantive law and pre-emption of a state court's power to adjudicate.").
1. Section 14(a) provides in part, no employer subject to this subchapter shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining. 29 U.S.C. § 164(a).