Petition for Writ of Certiorari — Columbia Export Terminal, LLC, Petitioner v. International Longshore and Warehouse Union, et al.

NO. 21-_____

In the

Supreme Court of the United States

COLUMBIA EXPORT TERMINAL, LLC,

Petitioner,

v.

THE INTERNATIONAL LONGSHORE

AND WAREHOUSE UNION, ET AL.,

Respondents.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

JACQUELINE M. DAMM

CHRISTOPHER MCCRACKEN

JACK S. SHOLKOFF

COUNSEL OF RECORD

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P.C.

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P.C.

THE KOIN CENTER

222 SW COLUMBIA STREET

SUITE 1500

PORTLAND, OR 97201

400 SOUTH HOPE STREET

SUITE 1200

LOS ANGELES, CA 90071

(213) 438-1281

JACK.SCHOLKOFF@OGLETREE.COM

THOMAS A. LIDBURY

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P.C.

155 NORTH WACKER DRIVE

SUITE 4300

CHICAGO, IL 60606

APRIL 4, 2022

SUPREME COURT PRESS

COUNSEL FOR PETITIONER

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

Petitioner Columbia Export Terminal, LLC

brought claims under the Racketeer Influenced Corrupt

Organizations Act (“RICO”) against an international

union and individual members of two local unions

affiliated with the international union. On a motion to

dismiss, the district court held that § 301 of the Labor

Management Relations Act (“LMRA”) preempted the

RICO claims. A divided panel of the Ninth Circuit

Court of Appeals affirmed. Judge Ikuta dissented, and

Judge Bennett, joined by judges Ikuta, Nelson, Bumatay, and VanDyke dissented from the Ninth Circuit’s

denial of rehearing en banc.

The questions presented are:

1. Does § 301 of the LMRA preempt claims

brought in federal court under federal statutes, like

the RICO claims in this case?

2. In interpreting the arbitration provisions in a

collective bargaining agreement, may a federal court

apply a presumption that the claims asserted are

arbitrable without first finding the arbitration provisions to be ambiguous?

3. Must, as the panel majority held in this case,

statutory claims be arbitrated if a collective bargaining

agreement contains arbitration provisions that do

not expressly exclude statutory claims from arbitration?

ii

PARTIES TO THE PROCEEDINGS

Petitioner and Plaintiff-Appellant Below

Columbia Export Terminal, LLC

Respondents and Defendants-Appellees Below

The International Longshore and Warehouse

Union, together with the following individual local

union members: Kane Ahuna, Jason Andrews, Jesus

Arango, Brian Banta, Keith Banta, Andre Barber,

Crystal Barnes, Craig Bitz, Lisa Blanchard, Randy

Booker, Brad Boyd, Larry Broadie, Felix Brown, Jimmy

Brown, Jon Budiselic, William Burris, Douglas Carey,

Greg Carse, Anthony Cerrutti, Hugh Colson, Tim

Copp, James Cothren, Steven Cox, Bobby Cranston,

James Daw, Adam Day, James Degman, Torrae De La

Cruz, Frank De La Rosa, Thomas Demuth, James

Dinsmore, Brian Dircksen, Terrence Dodson, Gary

Dotson, Oliver Ede, Ray Elwood, Todd Englert, Chris

Eubanks, David Fambro, Larry Fast, James Finch,

Greg Flannery, Mike Gardner, Brett Gebhard, Richard

Gilstrap, Ted Gray, Kurtis Hanson, Mike Harms,

Randy Harper, Terry Hickman, James Holland, Bruce

Holte, Nathan Hyder, Troy James, Sam Jauron,

Anthony Jeffries, Kevin Johnson, Pat Johnson, Tim

Jones, Jon Julian, Leroy Kadow, George Kelly, Eric

King, Wayne King, Kevin Knoth, Mike LaChapelle,

Jimmy Lai, Tom Langman, Ken Lee, Dan Lessard,

Shanti Lewallen, Thomas Love, Wilfred Luch, Karl

Lunde, Craig Magoon, Rickie Manning, Jay Mantei,

Pat Maronay, Angela Martin, Garry Matson, Pat McLain, Mathew McMahon, Mike McMurtrey, Donald

Mehner, Curtis Meuler, Karl Minich, Josh Morris,

iii

John Mulcahy, Tom Neitling, Martin Nelson, Greg

Nemyre, Rian Nestlen, Ken Oviatt, Thomas Owens,

John Peak, Shann Pederson, Jeff Perry, John Perry,

Arnold Peterson, Terry Player, James Popham, David

Porter, Mike Rapacz, John Rinta, William Roberts,

Joseph Robinson, Mark Robinson, Chris Scheffel,

Theodore Schuh, Michael Sexton, Mark Siegel,

Courtney Smith, Jeff Smith, Mike Smith, Scott Stein,

Donald Stykel, Mike Suhr, Leal Sundet, Lawrence

Thibedeau, Mark Thorsfeldt, Shawn Thorstad, James

Thorud, David Trachsel, William Underwood, Jason

Vance, Pan Varnon, Mike Walker, Dwayne Wamsher;

Eugene Webb, Mike Wehage, Kevin Weldon, Spencer

White, Richard Widle, Nural Willis, Ronald Woods,

Mark Wright, Carol Wurdinger, Jerry Ylonen, Paul

Yochim, Richard Zatterberg, and Fred Zoske.

iv

CORPORATE DISCLOSURE STATEMENT

Neither Columbia Export Terminal, LLC’s

(“CET”), nor its parent company Kalama Export Company, LLC is a publicly traded company; however,

CET is an indirect subsidiary of the following publiclyheld corporations, each of which indirectly owns 10%

or more of CET: Archer-Daniels-Midland Company

(NYSE: ADM) and Marubeni Corporation (OTC:

MARUF).

v

LIST OF PROCEEDINGS

United States Court of Appeals for the Ninth Circuit

No. 20-35037

Published at 23 F.4th 836

Columbia Export Terminal, LLC, Plaintiff-Appellant,

v. International Longshore and Warehouse Union, et

al., Defendants-Appellees.

Date of Final Opinion: January 5, 2022

Date of Rehearing Denial: January 5, 2022

_________________

United States District Court for the District of Oregon

Case No. 3:18-cv-2177-JR

Columbia Export Terminal, LLC, Plaintiff, v.

International Longshore and Warehouse Union, et

al., Defendants.

Date of Final Order: December 20, 2019

vi

TABLE OF CONTENTS

Page

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

PARTIES TO THE PROCEEDINGS ......................... ii

CORPORATE DISCLOSURE STATEMENT ........... iv

LIST OF PROCEEDINGS .......................................... v

TABLE OF AUTHORITIES ....................................... x

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY PROVISIONS INVOLVED ................. 2

INTRODUCTION ....................................................... 3

STATEMENT OF THE CASE .................................... 7

A. Factual Background ......................................... 7

B. Procedural History ........................................... 9

REASONS FOR GRANTING THE PETITION ....... 12

I.

THE NINTH CIRCUIT CREATED A CLEAR

CIRCUIT SPLIT BY APPLYING SECTION 301, A

STATUTE DESIGNED TO EXPAND FEDERAL

COURT JURISDICTION, TO STRIP FEDERAL

COURTS OF JURISDICTION OVER FEDERAL

CLAIMS ............................................................ 12

II. THE NINTH CIRCUIT CONTINUES TO APPLY A

PRESUMPTION OF ARBITRABILITY CONTRARY

TO THIS COURT’S ADMONITION IN GRANITE

ROCK ............................................................... 17

vii

TABLE OF CONTENTS – Continued

Page

III. THE NINTH CIRCUIT’S NEW STANDARD

REQUIRING ARBITRATION OF STATUTORY

CLAIMS UNLESS THE CBA EXPRESSLY

EXCLUDES STATUTORY CLAIMS TURNS THIS

COURT’S PRECEDENT ON ITS HEAD AND WILL

CREATE CHAOS ................................................ 20

CONCLUSION.......................................................... 26

viii

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion of the United States Court of Appeals for

the Ninth Circuit, Corrected and Reissued with

Order Denying Petition for Rehearing

(January 5, 2022) ...................................................... 1a

Dissenting Opinion of Judge Ikuta .................. 26a

Dissent from Order to Deny Rehearing by

Judge Bennett .................................................. 45a

Order of the United States District Court for the

District of Oregon Adopting Magistrate Report and

Dismissing Without Prejudice

(December 20, 2019) ............................................... 58a

Findings and Recommendation of the Magistrate

Judge (June 12, 2019) ............................................. 66a

RELEVANT STATUTORY PROVISIONS

Relevant Statutory Provisions ............................... 90a

ix

TABLE OF CONTENTS – Continued

Page

OTHER DOCUMENTS

CET First Amended Complaint

(March 28, 2022) ..................................................... 94a

Collective Bargaining Agreement

(August 27, 2014) .................................................. 115a

Grain Handler’s Agreement ........................... 160a

Shipside Addendum ....................................... 165a

Shipboard Foremen’s Addendum .................... 172a

Side Letter of Agreement Regarding Shipboard

Manning .......................................................... 176a

Letter of Understanding

Re: Electrical Maintenance Work .................. 178a

Memorandum of Agreement .......................... 179a

x

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

14 Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009) ................................... passim

Alaska Airlines, Inc. v. Schurke,

898 F.3d. 904 (9th Cir. 2019) ............................ 12

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) ....................................... 13, 21

Allis-Chalmers Corp. v. Lueck,

471 U.S. 202, 105 S.Ct. 1904,

85. L.Ed.2d 206 (1985) ...................................... 14

Brown v. Trans World Airlines,

127 F.3d 337 (4th Cir. 1997) ............................. 21

CardioNet, Inc. v. Cigna Health Corp.,

751 F.3d 165 (3d Cir. 2014) ............................... 18

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987) ....................................... 9, 13

Dasher v. RBC Bank (USA),

745 F.3d 1111 (11th Cir. 2014) ........................ 18

Granite Rock Co. v. Int’l Brotherhood of

Teamsters, 561 U.S. 287 (2010) ................ passim

Harrell v. Kellogg Co.,

892 F.Supp.2d 716 (E.D. Pa. 2012) ................... 21

Int’l Bhd. of Elec. Workers, Loc. 113 v. T & H

Servs., 8 F.4th 950 (10th Cir. 2021) .................. 17

Kobold v. Good Samaritan Reg’l Med. Ctr.,

832 F.3d 1024 (9th Cir. 2019) ....................... 9, 15

LaChance v. Northeast Pub., Inc.,

965 F.Supp. 177 (D. Mass. 1997) ...................... 21

xi

TABLE OF AUTHORITIES – Continued

Page

Lloyd v. J. P. Morgan Chase & Co.,

791 F.3d 265 (2d Cir. 2015) ................................. 5

Lockhart v. U.S.,

546 U.S. 142 (2005) ........................................... 10

Mathews v. Denver Newspaper Agency,

649 F.3d 1199 (10th Cir. 2011) ................. 6, 7, 21

Metropolitan Edison Co. v. NLRB,

460 U.S. 693 (1983) ................................... passim

Proctor v. United Parcel Service,

502 F.3d 1200 (10th Cir. 2007) ................... 14, 15

Saridakis v. United Airlines,

166 F.3d 1272 (9th Cir. 1999) ........................... 14

Teamsters v. Lucas Flour Co.,

369 U.S. 95 (1962) ....................................... 12, 14

Textile Workers Union of Am. v. Lincoln Mills

of Ala., 353 U.S. 448 (1957)......................... 12, 13

Valinski v. Detroit Edison,

197 Fed. Appx. 403 (6th Cir. 2006) ................... 14

Watts v. United Parcel Service, Inc.,

701 F.3d 188 (6th Cir. 2012) ....................... 10, 14

Wright v. Universal Maritime Service Corp.,

525 U.S. 70 (1998) ..................................... passim

STATUTES

28 U.S.C. § 1254(1) ..................................................... 2

29 U.S.C. § 185 .................................................. 2, 3, 12

29 U.S.C. § 621 .......................................................... 16

xii

TABLE OF AUTHORITIES – Continued

Page

45 U.S.C. § 51 et seq. ................................................ 16

Americans with Disabilities Act............................... 24

Civil Rights Act of 1964, Title VII ...................... 13, 16

LMRA § 301 ...................................................... passim

JUDICIAL RULES

Fed. R. Civ. P. 12 ........................................................ 9

OTHER AUTHORITIES

U.S. Department of Labor,

Office of Labor-Management Standards,

Online Public Disclosure Room at https://

olmsapps.dol.gov/olpdr/?&_ga=2.

172429216.2064346664.1648248446377010195.1645653817#CBA%20Search/

CBA%20Search/................................................. 24

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Columbia Export Terminal, LLC

(“CET”), respectfully petitions this Court for a writ of

certiorari to review the judgment in this case of the

United States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The opinion of the Ninth Circuit (App.1a) is

published at 23 F.4th 836. Judge Ikuta dissented from

this opinon (App.26a) and Judge Bennett dissented

from the order denying a petition for rehearing (App.

45a). The opinion of the District Court for the District

of Oregon (App.58a) and found at 2019 WL 6976033.

The Findings and Recommendations of the United

States Magistrate Judge (App.66a) and found at 2019

WL 3763764.

JURISDICTION

The Ninth Circuit issued an opinion on June 28,

2021. CET filed a petition for rehearing en banc. On

January 5, 2022, the Ninth Circuit issued a new opinion, withdrew the June 28, 2021 opinion, and denied the

petition for rehearing en banc. (App.5a). This petition

for a writ of certiorari is timely filed within ninety (90)

days of the Ninth Circuit’s January 5, 2022 opinion and

2

order. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 301 of the LMRA

Section 301 of the Labor Management Relations

Act provides:

(a) Venue, Amount, and Citizenship

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.

29 U.S.C. § 185

Racketeer Influenced Corrupt Organizations Act

Relevant provisions of the Racketeer Influenced

Corrupt Organizations Act (“RICO”) are reproduced in the Appendix. (App.90a).

3

INTRODUCTION

CET brought claims under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) against

the International Longshore and Warehouse Union

(“ILWU”) and individual union members for fraudulently billing CET for millions of dollars of unworked

time. In a decision that threatens to preempt federal

statutory rights for employers and employees alike,

and threatens to undermine thousands of carefully

negotiated collective bargaining agreements (“CBAs”),

a divided panel of the Ninth Circuit held that § 301

of the Labor Management Relations Act (“LMRA”), 29

U.S.C. § 185, preempted CET’s RICO claims. The panel

majority concluded that CET’s RICO claims were subject to the arbitration provisions of the CBA between

CET and ILWU and thus needed to be arbitrated. (App.

6a). As the panel dissent explains, the panel majority

opinion contains “serious errors that will throw our

LMRA jurisprudence into disarray.” (App.26a). This

Court should grant the writ for three reasons.

First, the panel majority’s opinion imposed an

incorrect and unnecessary analysis under § 301 of the

LMRA for this case and future cases asserting federal

statutory claims in federal court. CET brought only

federal statutory claims under RICO. (App.91a-114a).

CET filed in federal court. CET asserted no statelaw claims, and CET’s complaint did not refer to or

assert any violation of a CBA. (App.94a-114a). The

panel majority, however, mistakenly applied a two-part

test the Ninth Circuit had derived from precedents

this Court has developed for determining when § 301

preempts state-law claims. In so doing, the panel

4

majority created a split between the Ninth Circuit and

the Sixth and Tenth Circuits. The Sixth and Tenth

Circuits have both held that § 301 preemption is inapplicable when a federal-law claim is brought in

federal court. That is because preemption of federal-law

claims is inconsistent with the purpose of § 301. Section

301 is primarily a jurisdictional statute intended to

ensure the uniform interpretation of CBAs. Congress

intended that § 301, by providing a federal forum,

would eliminate inconsistent state and local interpretations of CBAs and allow for the development of a

uniform body of federal common law to govern CBAs.

The panel majority, by preempting CET’s RICO claims,

denied CET a federal judicial forum for a federal

statutory claim even though the case was pending in

federal court and therefore presented no risk to § 301’s

goal of a uniform federal common law. In addition to

creating a split between the circuits and confusion in

the Ninth Circuit, the panel majority’s decision also

sets a dangerous precedent. It allows federal courts to

preempt federal-law claims asserted under important

federal statutes, and will deny access to federal courts

for employees and employers alike who seek to enforce

their rights under those federal statutes.

Second, the panel majority erroneously applied a

presumption of arbitrability, in direct conflict with

this Court’s admonition, made in reversing the Ninth

Circuit in Granite Rock Co. v. Int’l Brotherhood of

Teamsters, 561 U.S. 287 (2010), that a court may apply

such a presumption only where the agreement to

arbitrate “is ambiguous about whether it covers the

dispute at hand.” Granite Rock, 561 U.S. at 301. Other

United States courts of appeals have easily followed

this Court’s directive in Granite Rock and have applied

5

the presumption only when arbitration provisions

are ambiguous as to the covered disputes. See, e.g.,

Lloyd v. J.P. Morgan Chase & Co., 791 F.3d 265, 270

(2d Cir. 2015) (“Granite Rock . . . made clear that the

presumption of arbitrability is a tool for resolving

genuine ambiguity, not a bias in favor of arbitration.”).

But in this case, contrary to Granite Rock, the panel

majority applied a presumption of arbitrability to the

admittedly “plain text” of the CBA without first

finding ambiguity. (App.18a). The panel majority

imposed on CET the “burden of demonstrating how

the language in the collective bargaining agreement

excludes a particular dispute from arbitration” and

insisted that “[a]ny doubts should be resolved in favor

of coverage.” (App.19a emphasis added). The panel

majority applied the presumption of arbitrability to

expand the arbitration provisions in the CBA, even

though the plain text of those provisions limited the

arbitration requirement to disputes between CET and

the “Local Unions” and do not require arbitration of

disputes between CET and the international union

or individual members, the defendants in this case.

Third, the panel majority created a new standard

under which statutory claims, like CET’s RICO claims,

are subject to arbitration unless a CBA expressly

excludes statutory claims from the CBA’s arbitration

procedures. (App.18a). This new standard flips a long

line of cases from this Court upside down. This Court

has long held that a CBA may require arbitration of

a statutory claim, but only if the intent to arbitrate

the statutory claim is “clear and unmistakable.” Wright

v. Universal Maritime Service Corp., 525 U.S. 70, 7980 (1998). See also, Metropolitan Edison Co. v. NLRB,

460 U.S. 693, 708 (1983) (“[W]e will not infer from a

6

general contractual provision that the parties intended

to waive a statutorily protected right unless the undertaking is ‘explicitly stated.’ More succinctly, the waiver

must be clear and unmistakable.”); 14 Penn Plaza

LLC v. Pyett, 556 U.S. 247, 251 (2009) (CBA at issue

met the “clear and unmistakable” standard when it

expressly identified specific statutory claims and stated

the parties’ intent to arbitrate claims under those

statutes).

The panel majority’s new standard requires a CBA

to expressly exclude statutory claims from arbitration

and, absent an express exclusion, statutory claims must

be arbitrated. Under Wright, Metropolitan Edison, and

14 Penn Plaza, the reverse is true: statutory claims

are not subject to arbitration unless the CBA clearly

and unmistakably sends those statutory claims to

arbitration. Labor and management have negotiated,

drafted, and are doing business under hundreds,

perhaps thousands of CBAs in reliance on Wright,

Metropolitan Edison, and 14 Penn Plaza. Other circuits have easily applied these precedents, holding that

statutory claims are not subject to arbitration when

a CBA’s arbitration provisions are written in general

terms that do not clearly and unmistakably assign

statutory claims to arbitration. See, e.g., Mathews v.

Denver Newspaper Agency, 649 F.3d 1199, 1207 (10th

Cir. 2011). The Ninth Circuit in this case, however,

splits with these circuits and throws existing CBAs

into a state of uncertainty. If courts apply the panel

majority’s new standard of requiring express exclusion

of statutory claims from arbitration, then employers

and employees alike will find themselves forced to

arbitrate statutory claims despite having drafted arbitrations provisions intended to preserve judicial forums

7

for those statutory claims. As the dissental explained,

the panel majority’s new standard “defeats the point

of negotiating a CBA” and as a consequence that

decision “will lead to a mass of arbitrations never

contemplated by a CBA.” (App.54a-55a).

For these reasons, as discussed further below,

CET asks that the Court grant the writ.

STATEMENT OF THE CASE

A.

Factual Background

CET operates a grain export terminal at the Port

of Portland in Portland, Oregon. (App.98a-99a). CET

employs members of two local unions on an hourly

basis to perform the grain handling work. (App.105a).

The two local unions are chartered under the international union, defendant ILWU. Id. The local unions

are not parties in this case. (App.94a-97a).

In 2018, CET learned that the ILWU and individual union members were committing mail and

wire fraud against CET. (App.105a-107a). CET had

reviewed guard logs at the terminal and learned that

members were not at the terminal at times for which

they had claimed hours worked. (App.106a). The defendants had understaffed jobs and, using interstate wires

and mail, had submitted timesheets claiming time

worked by employees who had not actually performed

work and who were not even present at the terminal

during the time they claimed they had been working.

(App.106a). Members split shifts in which one member

worked the first half of the shift, and another member worked the second half, but both members sub-

8

mitted time cards indicating falsely that both had

worked the full shift. (App.106a). Members also failed

to show up for work at all, but submitted time cards

falsely representing that the absent members had

worked a full shift. (App.106a). The defendants’ fraudulent overbillings exceeded five million dollars. (App.

106a).

CET is a party to a CBA with ILWU and the local

unions. (App.115a). The CBA provides for the resolution of “grievances” through a set of grievance-arbitration procedures. (App.139a-145a). The CBA defines the

grievances subject to those procedures as follows:

A grievance shall be defined as any controversy or disagreement or dispute between

the applicable ILWU Local Union and the

Employer [CET] for the particular grain

elevator(s) involved as to the interpretation,

application, or violation of any provision of

this Agreement.

(App.140a) (emphasis added). The CBA limits “grievance” to controversies, disagreements, or disputes

between CET and the applicable “Local Union.” The

CBA’s definition of “grievance,” and the arbitration

procedures that flow from that definition, do not cover

disputes between CET and any of the defendants in

this case, the international union, ILWU, and the

individual members. (App.140a). In addition, even as

to claims that might be brought against the local

unions, the arbitration provisions do not mention or

require arbitration of statutory claims, like CET’s

RICO claims. (App.140a). Rather, the clause is limited

to disputes over the “interpretation, application, or

violation” of the CBA. (App.140a).

9

B.

Procedural History

After learning of the fraud, CET filed federal RICO

claims against ILWU and the individual members, in

the federal district court for the District of Oregon.

(App.94a). CET’s complaint alleged that the ILWU

and the members, with specific intent to defraud,

jointly entered into a conspiracy and scheme to defraud

CET through the overbilling practices described above.

(App.106a). The complaint alleged no state-law claims.

The complaint did not rely upon, mention, or allege a

violation of a CBA. (App.94a-114a).

In the district court, defendants moved to dismiss

under Fed. R. Civ. P. Rule 12, arguing that § 301 of

the LMRA preempted the RICO claims. (App.58a-59a).

The district court incorrectly applied the Ninth Circuit’s

two-part test for determining whether § 301 preempts

state-law claims as found in cases like Kobold v. Good

Samaritan Reg’l Med. Ctr., 832 F.3d 1024 (9th Cir.

2019). (App.71a-77a). The Ninth Circuit had derived

Kobold’s test from Supreme Court cases addressing

when § 301 preempts state-law claims, including Caterpillar Inc. v. Williams, 482 U.S. 386 (1987). Kobold,

832 F.3d at 1032-33. The district court determined that

§ 301 treats federal-law claims the same as state-law

claims. (App.61a-62a). The court then applied the twopart test and dismissed CET’s RICO claims, ruling that

§ 301 of the LMRA preempted the claims and that the

RICO claims were subject to the CBA’s arbitration

procedures. (App.61a-65a).

CET appealed. A divided panel for the Ninth

Circuit affirmed. Like the district court, the panel

majority applied the two-part Kobold test, a test for

whether § 301 preempts a state-law claim even though

CET’s complaint asserted no state law claim and was

10

filed in federal court. (App.9a-10a). Like the district

court, the panel majority held that § 301 treats federallaw claims the same as state-law claims. (App.10a-13a).

The only difference the panel majority recognized was

nominal, changing “preempted” to “precluded.” (App.

12a).1

Next, the majority, contrary to this Court’s holding

in Granite Rock Co. v. Int’l Brotherhood of Teamsters,

applied a presumption of arbitrability, without first

finding the CBA’s arbitration provisions to be ambiguous. (App.18a-19a). The panel majority then compounded its misapplication of the presumption of

arbitrability by creating a new standard under which

statutory claims must be arbitrated unless the arbitration provisions of a CBA expressly exclude statutory

claims from arbitration. As the majority reasoned,

because the “CBA does not say, as it could, that RICO

—or any other statutory claims—is excluded from the

grievance process” the case had to be sent to arbitration.

(App.18a). This new standard is directly contrary to

Wright, Metropolitan Edison, and 14 Penn Plaza. The

panel majority did not cite any of those cases.

Judge Ikuta dissented, citing “serious errors” in

the Ninth Circuit’s decision. (App.26a). First, Judge

Ikuta noted that the Ninth Circuit decision in this case

conflicted with the Sixth Circuit’s decision in Watts v.

United Parcel Service, Inc., 701 F.3d 188 (6th Cir.

1 The doctrine of “preclusion” applies to conflicts between federal

statutes, but it is very different from preemption. Preclusion applies

only if two federal statutes present an irreconcilable conflict

and, if so, the more recently enacted statute precludes the older

statute. See Lockhart v. U.S., 546 U.S. 142, 149 (2005) (Scalia

concurring). The LMRA cannot preclude RICO because there is

no conflict and because Congress enacted RICO after the LMRA.

11

2012), because the Ninth Circuit had applied § 301

preemption even though CET brought federal statutory

claims in federal court. (App.51a). As Judge Ikuta

pointed out, the majority’s two-step analysis only

applies when a plaintiff brings a state-law claim in

state court. (App.27a-28a). Second, Judge Ikuta noted

that the Ninth Circuit, despite having been reversed

on the same issue in Granite Rock, continued to apply

a presumption of arbitrability in violation of Granite

Rock. (App.31a-32a; 36a-37a). Third, Judge Ikuta noted

that the panel majority’s new standard would require

arbitration of federal statutory claims even though

the CBA contained no language “clearly and unmistakably” assigning those claims to arbitration, contrary

to Wright, Metropolitan Edison, and 14 Penn Plaza.

(App.31a-32a; 36a-37a).

CET sought en banc review, which the Ninth

Circuit denied, but Judge Bennett, joined by Judges

Ikuta, Nelson, Bumatay, and VanDyke dissented from

that denial. (App.45a). The dissental recognized that

the panel majority’s decision created a circuit split by

incorrectly applying § 301 analysis to federal statutory

claims filed in federal court (App.51a), and that the

panel majority’s “new standard” violates controlling

precedent of this Court by creating a presumption of

arbitrability in “which statutory claims are subject to

arbitration unless a CBA expressly excludes statutory

claims from the CBA’s arbitration procedures.” (App.

54a-55a). As the dissental noted, that new standard, if

left standing, “will lead to a mass of arbitrations never

contemplated by a CBA” an “erroneous change [that]

will harm both labor and management.” (App.55a-56a).

12

REASONS FOR GRANTING THE PETITION

I.

THE NINTH CIRCUIT CREATED A CLEAR CIRCUIT

SPLIT BY APPLYING SECTION 301, A STATUTE

DESIGNED TO E XPAND FEDERAL C OURT

JURISDICTION, TO STRIP FEDERAL COURTS OF

JURISDICTION OVER FEDERAL CLAIMS.

Congress, in enacting § 301 of the LMRA, “intended doctrines of federal labor law uniformly to prevail

over inconsistent local rules.” Teamsters v. Lucas Flour

Co., 369 U.S. 95, 104 (1962). To that end, LMRA § 301

(a) creates federal jurisdiction for claims asserting

violations of CBAs, providing that “[s]uits for violation of contracts between an employer and a labor

organization . . . may be brought in any district court

of the United States.” 29 U.S.C. § 185(a). In addition

to its express grant of federal court jurisdiction, this

Court has interpreted § 301 as directing federal courts

to create and apply a federal common law for interpreting CBAs, Textile Workers Union of Am. v. Lincoln

Mills of Ala., 353 U.S. 448, 456 (1957), so as to ensure

a uniform federal labor law prevails over inconsistent

interpretations of CBAs by state courts. Teamsters,

369 U.S. at 104-105). If a plaintiff brings a state-law

claim in state court, courts including the Ninth Circuit,

have applied a two-part test, asking whether (1) the

claim alleges a breach of a CBA or (2) requires the

interpretation of a CBA. Lingle v. Norge Div. of Magic

Chef, Inc., 486 U.S. 399, 405-07 (1988); Alaska Airlines,

Inc. v. Schurke, 898 F.3d. 904, 920-921 (9th Cir. 2019).

If so, the state-law claim is said to be “preempted”

and defendants may remove the case to federal court

through the jurisdictional doctrine of “complete pre-

13

emption.” See, e.g., Caterpillar, 482 U.S. at 393-394

(1987). Once the case reaches federal court, whether

by removal or by being filed originally in federal

court, the only remaining question is one of contract

interpretation to determine whether the federal claims

must be arbitrated. Granite Rock, 561 U.S. at 310-11.

Until this case, the Ninth Circuit has never

applied § 301 to “preempt” or “preclude” a federal

statutory claim. Preemption or preclusion of federal

claims is inconsistent with the purpose of § 301,

which is primarily a jurisdictional statute intended

to ensure the uniform interpretation of CBAs. As

the dissental phrased the issue, “[a] statute passed

by Congress to help maintain a uniform body of federal labor law does not somehow nullify a different

statute passed by Congress to, among other objectives, eradicate organized attempts to defraud through

a pattern of racketeering activity.” (App.46a). See,

e.g., Alexander v. Gardner-Denver Co., 415 U.S. 36, 4950 (1974) (“In submitting his grievance to arbitration,

an employee seeks to vindicate his contractual right

under a collective-bargaining agreement. By contrast,

in filing a lawsuit under Title VII, an employee asserts

independent statutory rights accorded by Congress.”).

A federal statutory claim brought in federal court

will necessarily be consistent with § 301’s goal of

ensuring a federal forum. If the federal claim required

the federal court to interpret the CBA, then the court

would just apply federal common law to ensure the

uniform body of federal law governing CBAs and

eliminate the risk of inconsistencies, consistent with

Congress’s intent in enacting § 301. See Textile Workers

Union of Am., 353 U.S. at 451, 456 (1957).

14

This is all well-established. As the Sixth Circuit

correctly held, when a claim is based on a federal cause

of action and is in federal court, there is no danger of

inconsistent interpretations of a CBA’s provisions by

different state courts, and in those circumstances,

§ 301 does not apply. Watts, 701 F.3d at 191-92 (6th

Cir. 2012). In Watts, the plaintiff brought a claim under

the Americans with Disabilities Act (“ADA”) against

her employer for failure to accommodate a back injury

with light-duty work. Id. at 189-190. The employer

argued the plaintiff was not eligible for the light-duty

under the terms of the CBA. Id. The district court

agreed, holding that § 301 preempted the ADA claim

because the claim required interpretation of the CBA.

The Sixth Circuit reversed, explaining that:

Congress’s power to preempt state law is

rooted in the Supremacy Clause of the United

States Constitution. Allis-Chalmers [Corp.

v. Lueck], 471 U.S. [202] at 208, 105 S.Ct.

1904 [85 L.Ed.2d 206] [(1985)] The animating

purpose of § 301 preemption is to ensure

that federal labor law uniformly prevails over

inconsistent interpretations of CBAs by state

courts. Lucas Flour, 369 U.S. at 103-04, 82

S.Ct. 571; see also Valinski v. Detroit

Edison, 197 Fed. Appx. 403, 407-08 (6th

Cir. 2006) (unpublished). When a claim

asserts a right arising under federal law,

and is filed in federal court, that rationale

does not apply. See Saridakis v. United

Airlines, 166 F.3d 1272, 1276 (9th Cir. 1999)

(“The preemption doctrine per se does not

govern questions relating to the compatibility

of two or more federal laws.”); cf. Proctor v.

15

United Parcel Service, 502 F.3d 1200, 1205

n.2 (10th Cir. 2007) (“Mr. Proctor’s ADA

claim is clearly not preempted by § 301 because one federal statute cannot preempt

another[.]”). Because Watts’s claim is based

on a federal cause of action and is in federal

court, there is no danger of divergent application of a CBA’s provisions by state courts;

thus, the motivating purpose of § 301 preemption simply does not apply.

Id. at 191-192. The Tenth Circuit reached the same

conclusion in Proctor v. United Parcel Service, 502 F.3d

1200 at 1205 n.2, where the defendant argued that

§ 301 preempted an employee’s claim under the ADA.

There, the Tenth Circuit found that the employee’s

claim “is clearly not preempted by § 301 because one

federal statute cannot preempt another. . . . ” Id.

In the face of this well-established authority, the

two-judge majority in the instant action, upended this

consensus. It held that LMRA § 301 preempted a federal law—RICO—and not a state law, improperly

applying the two-part Kobold test to a federal claim.

In doing so, the panel majority’s decision ran squarely

into the contrary authority established by the Sixth

and Tenth Circuits.

In addition to creating a circuit split, the panel

majority also sets a dangerous precedent on an

important topic. At its heart, § 301 is a jurisdictionexpanding statute. Congress intended § 301 to open

the doors of the federal courts to suits alleging violations of CBAs. The panel majority’s decision has the

opposite effect. If left standing it will allow the Ninth

Circuit, and encourage other circuits, to decline to hear,

and instead “preempt” claims brought under important

16

federal statutes if those claims are between parties

to a CBA. The decision will cut off access to federal

courts for employees and employers alike. As the

dissental characterized the danger:

[T]he LMRA does not bar a federal statutory

claim brought in federal court. Today, the

barred claim is a Racketeer Influenced and

Corrupt Organizations Act (“RICO”) claim

alleging a $5.3 million mail and wire fraud

racketeering scheme. Tomorrow, the barred

claim may be based on the Americans with

Disabilities Act (“ADA”) or Title VII of the

Civil Rights Act of 1964.

(App.45a-46a). It is easy to add other federal statutory

claims to the dissental’s list. For example, claims under

the federal Age Discrimination in Employment Act,

29 U.S.C. § 621, the Federal Employers’ Liability Act

(FELA), 45 U.S.C. § 51 et seq., and other statutes, are

all at risk of being preempted by the panel majority’s

decision.

There is no indication that Congress intended that

result when enacting § 301 in 1947, or that Congress,

when it enacted RICO 23 years later in 1970, intended

that RICO would not apply to parties to a CBA. 2

This Court has not previously answered the question

whether § 301 preempts a federal statutory claim

brought in federal court. The Ninth Circuit has now

held that it does, contrary to results reached in the

Sixth and Tenth Circuits. The Court should grant the

2 To the contrary, when enacting RICO, Congress made express

findings that crime and “fraud” had infiltrated “labor unions”

and enacted RICO to add to the legal tools available to combat

that corruption. (App.90a-91a).

17

writ to eliminate the conflict between the circuits and

the risk that the panel majority’s decision will lead to

preemption of important, federal statutory claims.

II. THE NINTH CIRCUIT CONTINUES TO APPLY A

PRESUMPTION OF ARBITRABILITY CONTRARY TO

THIS COURT’S ADMONITION IN GRANITE ROCK.

The Court has held consistently that “[a]rbitration

is strictly ‘a matter of consent’ . . . and thus [arbitration] ‘is a way to resolve disputes—but only those

disputes—that the parties have agreed to submit to

arbitration.’” Granite Rock, 561 U.S. at 299. This is

true, even with CBAs governed by the LMRA. Granite

Rock, 561 at 299. In other words, “a court may order

arbitration of a particular dispute only where the

court is satisfied that the parties agreed to arbitrate

that dispute.” Id. at 297 (original emphasis). Granite

Rock, in addition to reaffirming the “first principle”

that arbitration is a matter of consent, also held, again

consistent with the need for consent, that a court may

apply a presumption of arbitrability “only where a

validly formed and enforceable arbitration agreement

is ambiguous about whether it covers the dispute at

hand,” and “only when that presumption is not rebutted.” Id. at 301. Circuit courts of appeals that have

considered this second principle from Granite Rock

have routinely limited the presumption of arbitrability

to cases in which the arbitration provisions are

ambiguous as to whether they required arbitration of

the particular dispute in question,3 making the Ninth

Circuit’s decision in this case the outlier.

3 For examples from the Second, Third, Tenth and Eleventh

Circuits see, Int’l Bhd. of Elec. Workers, Loc. 113 v. T & H Servs.,

8 F.4th 950, 958 (10th Cir. 2021)(“There is a presumption in

18

Despite having been reversed in Granite Rock,

the panel majority insisted on applying a presumption

of arbitrability without first finding ambiguity in the

CBA. (App.18a). The panel majority misinterpreted

Granite Rock. Instead of finding ambiguity, the panel

majority purported to interpret the “plain text” of the

CBA’s arbitration clause while simultaneously insisting

that Granite Rock “directs” courts “to resolve any

doubts concerning the scope of issues to be referred

to arbitration in favor of arbitration.” (App.21a). Citing

two Ninth Circuit cases that pre-dated Granite Rock,

the panel majority imposed on CET the “burden of

demonstrating how the language in the collective

bargaining agreement excludes a particular dispute

from arbitration” and then doubled down on its insistence that “[a]ny doubts should be resolved in favor of

coverage.” (App.19a, emphasis added). In short, contrary to Granite Rock, the panel majority applied a

presumption of arbitrability to the plain text of the

CBA, and with no finding or discussion of whether

the CBA’s arbitrations provisions were ambiguous.

They are not.

favor of arbitrability . . but a court “appl[ies] the presumption

. . . only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand;

and . . . [the court] adher[es] to the presumption and order[s]

arbitration only where the presumption is not rebutted,”);

Lloyd, 791 F.3d at 270 (2d Cir. 2015)(“Granite Rock . . . made

clear that the presumption of arbitrability is a tool for resolving

genuine ambiguity, not a bias in favor of arbitration”); Dasher v.

RBC Bank (USA), 745 F.3d 1111, 1115 (11th Cir. 2014)(“Further, the presumption applies when an arbitration agreement is

ambiguous . . . ”); CardioNet, Inc. v. Cigna Health Corp., 751

F.3d 165, 173 (3d Cir. 2014) (“[T]he presumption of arbitrability

applies only where an arbitration agreement is ambiguous about

whether it covers the dispute at hand.”).

19

The arbitration provisions are plainly limited to

disputes with the local unions, and do not apply to

the defendants in this case.4 The CBA’s arbitration

procedures apply only to “grievances,” and the CBA

defines “grievance,” and limits the scope of the reach

of arbitration, to “any controversy or disagreement

or dispute between the applicable ILWU Local Union

and the Employer [CET] for the particular grain elevator(s) involved as to the interpretation, application,

or violation of any provision of this Agreement.”

(App.140a, emphasis added). The grievances subject

to arbitration do not include the disputes between

CET and any of the defendants in this case, the

international union, ILWU, and the individual members. (App.140a). Despite extensive briefing and two

dissenting opinions discussing this issue, the panel

majority simply ignored this plain text of the CBA.

The panel majority not only failed to discuss or give

meaning to the words “Local Unions,” the majority

actually replaced those two words with an ellipsis

when quoting the CBA’s definition of “grievance.”

(App.18a). In doing so, and in imposing a presumption

of arbitrability where no presumption was warranted,

the panel majority extended the scope of the arbitration provisions beyond the scope the parties had

agreed to. As Judge Ikuta noted in her dissent, “it is

immediately apparent that the arbitration provision

does not cover CET’s claims against ILWU,” that on

this point the CBA is “unambiguous,” and that “CET’s

claims against ILWU falls outside of the definition of

a grievance.” (App.36a).

4 As shown in the following section, the arbitration provisions also

are limited to disputes over the “interpretation, application, or

violation” of the CBA, not RICO and other statutory claims.

20

This Court in Granite Rock, placed important

limits on the application of any presumption of

arbitrability. The Ninth Circuit did not get the message.

This Court should grant the writ to reinforce Granite

Rock’s limits, correct the erroneous application of the

presumption and, as discussed below, reverse the new

standard the panel majority created, under which

statutory claims must be expressly excluded or are

presumed to go to arbitration.

III. THE NINTH CIRCUIT’S NEW STANDARD REQUIRING

ARBITRATION OF STATUTORY CLAIMS UNLESS THE

CBA EXPRESSLY EXCLUDES STATUTORY CLAIMS

TURNS THIS COURT’S PRECEDENT ON ITS HEAD

AND WILL CREATE CHAOS.

In requiring arbitration of CET’s statutory RICO

claims, the panel majority created a new standard, a

standard directly at odds with this Court’s decisions

in Wright, Metropolitan Edison, and 14 Penn Plaza.

Those cases hold that statutory claims like CET’s

RICO claims are subject to arbitration only if the

parties to the CBA express a “clear and unmistakable”

intent to arbitrate those statutory claims. Here, the

panel majority created a new standard that flips this

Court’s precedents upside down.

The arbitration provisions extend only to disputes

over the “interpretation, application, or violation” of

the CBA. (App.140a). This wording is common in CBAs

and other Circuits, like the Tenth and Fourth Circuits,

have had little difficulty applying this Court’s precedents, holding that general arbitration provisions that

require arbitration of disputes involving the “interpretation” or “application” of a CBA, do not require

21

arbitration of statutory claims.5 But not so the Ninth

Circuit. Here, the panel majority wrote: “[t]he text of

the CBA does not say, as it could, that RICO—or any

other statutory claims—is excluded from the grievance

process” and, as a consequence, the majority sent the

claims to arbitration. (App.18a). The panel majority

failed to cite or discuss Wright, Metropolitan Edison,

or 14 Penn Plaza despite extensive briefing from the

parties on those cases and dissenting opinions that

also focused on those cases. Instead of searching the

CBA for clear and unmistakable intent to arbitrate

statutory claims, the panel majority set a new stan5 See, e.g., Mathews v. Denver Newspaper Agency, LLP, 649 F.3d

1199 at 1207 (agreement to arbitrate disputes “as to the

interpretation, application or construction of this contract [i.e.

the CBA]” resulted in “no waiver of the right to litigate statutory

claims . . . even though the “contractual rights and statutory

rights were coterminous”); Brown v. Trans World Airlines, 127

F.3d 337, 341 (4th Cir. 1997) (statutory claims not subject to arbitration where “instead of mandating arbitration of all employmentrelated disputes or, more specifically, of statutory disputes, the

collective bargaining agreement submits to arbitration only

disputes that ‘grow out of the interpretation or application of

any of the terms of this Agreement’” even if “the facts underlying

Brown’s claims of statutory violation might also give rise to a

claim for breach of the” CBA). See also, Harrell v. Kellogg Co.,

892 F.Supp.2d 716, 724 (E.D. Pa. 2012) (statutory claims not

subject to arbitration where clause compelled arbitration of

“‘disputes or disagreements concerning the interpretation and

application’ of the CBA.”); LaChance v. Northeast Pub., Inc.,

965 F.Supp. 177, 184 (D. Mass. 1997) (“As in Gardner-Denver,

the arbitration agreement between Northeast and the union is

limited to matters involving the interpretation, application,

administration or alleged violation of the CBA” and “where the

arbitration agreement only agrees to arbitrate claims arising from

rights provided in the CBA, an employee cannot be precluded from

bringing separate statutory claims, even when the two claims

arise out of the same factual scenario.”).

22

dard that now requires parties to a CBA to expressly

exclude statutory claims from arbitration. Under the

Ninth Circuit’s new standard, if a standard arbitration clause covering only disputes under the CBA

does not go on to expressly exclude statutory claims

then statutory claims must go to arbitration. This is

backwards, at complete odds with this Court’s precedents, and should be corrected by granting the writ.

In Wright, this Court addressed whether a general arbitration provision in a CBA required arbitration

of a claim under the ADA. The Court held that the

ADA claim was not subject to arbitration and not

subject to a presumption of arbitration: “[n]ot only is

petitioner’s statutory claim not subject to a presumption

of arbitrability; we think any CBA requirement to

arbitrate it must be particularly clear.” Wright, 525

U.S. at 79-80. Wright relied on Metropolitan Edison. In

Metropolitan Edison this Court had rejected a standard

much like the panel majority’s new standard: “[W]e

will not infer from a general contractual provision that

the parties intended to waive a statutorily protected

right unless the undertaking is ‘explicitly stated.’ More

succinctly, the waiver must be clear and unmistakable.” Metropolitan Edison, 460 U.S. at 708. More

recently, in 14 Penn Plaza, this Court identified the

type of language a CBA must contain to satisfy the

“clear and unmistakable” standard needed to send

statutory claims to arbitration. The CBA in 14 Penn

Plaza identified a number of statutory claims by title,

including claims under the Age Discrimination in Employment Act, and provided that “[a]ll such claims

shall be subject to the grievance and arbitration procedure . . . as the sole and exclusive remedy for violations.” 14 Penn Plaza, 556 U.S. at 252. This Court

23

treated this language, which identified the statute by

name and expressly sent claims under that statute to

arbitration, as satisfying the “clear and unmistakable”

standard. Id. at 251. Collectively, these cases hold,

first, that there is no presumption of arbitrability for

statutory claims and, second, that statutory claims

are not subject to arbitration unless the arbitration

agreement clearly and unmistakably identifies those

claims and includes those claims as claims subject to

arbitration

In this case, it is undisputed that the CBA did

not discuss statutory claims in general and importantly,

unlike 14 Penn Plaza, the CBA did not expressly

earmark any specific statutory claims for arbitration.

As Judge Ikuta noted in dissent:

It is immediately apparent that the parties

did not agree to arbitrate federal statutory

claims in general, or RICO claims in

particular. . . . The CBA’s grievance and

arbitration provisions here do not expressly

agree to arbitrate RICO claims, or any other

statutory claims, or authorize the arbitrators

to resolve such claims.

(App.36a).

The panel majority set a dangerous and confusing

precedent. Under the majority’s new test, a general

arbitration provision, meaning an arbitration provision

with no exclusions for statutory claims, results in a

presumption of arbitrability and in the arbitration of

all statutory claims. Under the majority’s standard,

employers and unions must now draft their CBAs to

exclude statutory claims from arbitration, because

the parties “could” do so if they wished, and if the

24

parties do not draft exclusions for statutory claims,

then all statutory claims go to arbitration. This Court

decided 14 Penn Plaza in 2009. Since then, hundreds,

perhaps thousands of CBAs have been drafted in

light of the seemingly straight-forward standards set

in Wright, Metropolitan Edison, and 14 Penn Plaza.6

If the parties drafting those CBAs did not clearly and

unmistakably send statutory claims to arbitration,

then the parties knew those statutory claims were

not subject to arbitration. The panel majority’s new

standard—that statutory claims are arbitrable unless

expressly excluded—turns the key cases upside down.

If a court follows the panel majority’s new standard,

then the legal consequences of a general arbitration

provision will be the opposite of what the parties

intended. The parties may have intended that important statutory claims, likes claims under the ADA,

would have access to a judicial forum and not be subject to arbitration. To achieve that intent, they could

have relied on a general arbitration provision that did

not clearly and unmistakably send statutory claims

to arbitration. Application of the panel majority’s decision will now produce a legal result contrary to the

parties’ intent: all statutory claims will go to arbitration because the CBA “could have” excluded them, but

did not.

As the dissental stated, recognizing the harm:

[T]he panel opinion “creates a new standard

under which statutory claims are subject to

6 See, U.S. Department of Labor, Office of Labor-Management

Standards, Online Public Disclosure Room at https://olmsapps.

dol.gov/olpdr/?&_ga=2.172429216.2064346664.1648248446377010195.1645653817#CBA%20Search/CBA%20Search/.

25

arbitration unless a CBA expressly excludes

statutory claims from the CBA’s arbitration

procedures.”. . . . The notion that any claim

that is not expressly excluded is arbitrable

largely defeats the point of negotiating a

CBA; the scope of arbitration would become

comprehensive no matter what the CBA says,

unless it explicitly excludes from arbitration

a laundry list of claims. And typical CBAs

(those without a laundry list of exclusions)

will prove no less troublesome in litigation,

forcing courts to deduce parties’ arbitration

intent from what they didn’t say, rather than

read the written agreement to determine

what they specifically agreed to arbitrate.

The panel’s opinion will lead to a mass of

arbitrations never contemplated by a CBA.

(App.55a). In short, the panel majority’s aberrant decision leaves the enforcement of existing arbitration

provisions in doubt, and employers and unions negotiating new arbitration provisions are left guessing, with

no consistent federal guidance, on what language must

be used to draft those provisions to achieve an enforceable scope of arbitration coverage that is commensurate with their contractual intent.

26

CONCLUSION

For the forgoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

JACK S. SHOLKOFF

COUNSEL OF RECORD

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P. C.

400 SOUTH HOPE STREET

SUITE 1200

LOS ANGELES, CA 90071

(213) 438-1281

JACK.SCHOLKOFF@OGLETREE.COM

JACQUELINE M. DAMM

CHRISTOPHER MCCRACKEN

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P. C.

THE KOIN CENTER

222 SW COLUMBIA STREET

SUITE 1500

PORTLAND, OR 97201

THOMAS A. LIDBURY

OGLETREE, DEAKINS, NASH,

SMOAK & STEWART, P. C.

155 NORTH WACKER DRIVE

SUITE 4300

CHICAGO, IL 60606

COUNSEL FOR PETITIONER

APRIL 4, 2022