Petition for Writ of Certiorari — Jose Mendoza, Jr., Petitioner v. Amalgamated Transit Union International, et al.

NO. 22-_____

In the

Supreme Court of the United States

JOSE MENDOZA, ET AL.,

Petitioners,

v.

AMALGAMATED TRANSIT UNION

INTERNATIONAL (“ATU”), 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

MICHAEL J. MCAVOYAMAYA, ESQ.

COUNSEL OF RECORD

1100 E. BRIDGER AVENUE

LAS VEGAS, NV 89101

(702) 299-5083

MIKE@MRLAWLV.COM

SEPTEMBER 6, 2022

SUPREME COURT PRESS

COUNSEL FOR PETITIONERS

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

The Labor Management Relations Act of 1947

(“LMRA”) adopted by Congress provides a federal forum

for resolving disputes over collective bargaining agreements (“CBA”) and contracts between unions. See 29

U.S.C. § 185. This Court has consistently held that “an

application of state law is preempted by § 301 of the

[LMRA] only if such application requires the

interpretation of a CBA.” See Lingle v. Norge Div. of

Magic Chef, 486 U.S. 399, 413 (1988); Livadas v.

Bradshaw, 512 U.S. 107, 123–24 (1994); Hawaiian

Airlines v. Norris, 512 U.S. 246, 262-63 (1994). The

Labor-Management Reporting and Disclosure Act of

1959 (“LMRDA”) was adopted by Congress to regulate

internal union governance and preserves state claims

and remedies by union members against their unions

to enforce union constitutions. See 29 U.S.C. §§ 413,

466, 483, 523.

The Question Presented Is:

1. Does § 301 of the LMRA completely preempt

state law claims and remedies by union members

against their unions to enforce union constitutions

despite the LMRDA’s six savings clauses preserving

state law claims and remedies to enforce union constitutions?

ii

PARTIES TO THE PROCEEDINGS

Petitioners and Plaintiffs-Appellants Below

●

Jose Mendoza Jr.

●

Myeko Easley

●

Robtert Naylor

●

Robbie Harris

●

Gary Sanders

●

Linda Johnson-Sanders

●

Ceasar Jimenez

●

Dennis Hennessey

Respondents and Defendants-Appellees Below

●

Amalgamated Transit Union International

(“ATU”)

●

James Lindsay III

●

Lawrence J. Hanley

●

Antonette Bryant

●

Richie Murphy

●

Keira Mcnett

●

Daniel Smith

●

Tyler Home

●

Keolis Transit America Inc.

●

Miller Kaplan & Arase

●

Anne Salvador

●

Alexandra Chernyak

iii

LIST OF PROCEEDINGS

Direct Proceedings

United States Court of Appeals for the Ninth Circuit

No. 20-16079; 20-16080

Mendoza v. Amalgamated Transit Union Int’l, et al.

Date of Final Judgment: April 7, 2022

_________________

United States District Court for the District of Nevada

No. 2:18-CV-959 JCM (DJA)

Mendoza v. Amalgamated Transit Union Int’l, et al

Date of Final Order: May 4, 2020

Related Proceeding

United States Court of Appeals for the Ninth Circuit

No. 19-16863

Raymond Garcia v. Service Employees International

Union, et al.

Date of Final Judgment: April 5, 2021

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

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

LIST OF PROCEEDINGS ......................................... iii

TABLE OF AUTHORITIES ...................................... ix

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

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 1

STATEMENT OF THE CASE .................................... 2

A. Statement of Facts. .......................................... 2

B. Procedural History. .......................................... 7

C. Statutory Background.................................... 10

1. LMRA Statutory Background. ................. 10

2. LMRDA Statutory Background. .............. 12

D. The Decision Below. ....................................... 15

REASONS FOR GRANTING THE PETITION ....... 16

I.

THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF THIS COURT. ............................. 16

A. The Decision Below Conflicts with the

Decisions of This Court Because It Fails

to Analyze and Willfully Ignores Congressional Intent Not to Preempt State

Claims and Remedies to Enforce Union

Constitutions............................................. 16

v

TABLE OF CONTENTS – Continued

Page

B. The Decision Below Conflicts with the

Decisions of This Court That State

Claims Are Preempted by § 301 Only If

Interpretation of a CBA Is Required. ...... 24

C. The Decision Below Also Conflicts with

the Decisions of This Court That Hold

That Union Member Suits to Enforce

Union Constitutions Are Actionable in

State Court. ............................................... 26

II. THE QUESTION PRESENTED IS EXCEPTIONALLY

IMPORTANT AND WARRANTS REVIEW. .............. 28

III. THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF OTHER COURTS OF APPEAL. ...... 31

CONCLUSION.......................................................... 32

vi

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

JOSE MENDOZA, JR. ET AL. V.

AMALGAMATED TRANSIT UNION INT’L., ET AL.

Memorandum Opinion of the United States Court

of Appeals for the Ninth Circuit

(April 7, 2022) ..................................................... 1a

Justice Collins—Concurring in Part

and Dissenting in Part ....................................... 5a

Opinion of the United States Court of Appeals for

the Ninth Circuit (April 7, 2022) ....................... 7a

Order of the United States District Court for the

District of Nevada (May 4, 2020) ..................... 24a

Order of the United States District Court for the

District of Nevada Consolidating Cases

(March 27, 2019) ............................................... 82a

Order of the United States District Court for the

District of Nevada (September 5, 2019) .......... 85a

Order Denying Motion to Remand of the United

States District Court for the District of Nevada

(November 2, 2017) ........................................ 115a

Order on Motion to Dismiss of the United States

District Court for the District of Nevada

(September 19, 2018)...................................... 130a

vii

TABLE OF CONTENTS – Continued

Page

RAYMOND GARCIA V. SERVICE EMPLOYEES

INTERNATIONAL UNION, ET AL.

Opinion of the United States Court of Appeals for

the Ninth Circuit (April 5, 2021) ................... 147a

Memorandum Opinion of the United States Court

of Appeals for the Ninth Circuit

(April 5, 2021) ................................................... 162a

STATUTORY PROVISIONS

Relevant Statutory Provisions ............................. 169a

29 U.S.C. § 160 ................................................. 169a

29 U.S.C. § 185 ................................................. 169a

29 U.S.C. § 164 ................................................. 171a

29 U.S.C. § 401 ................................................. 172a

29 U.S.C. § 411 ................................................. 174a

29 U.S.C. § 413 ................................................. 178a

29 U.S.C. § 431 ................................................. 178a

29 U.S.C. § 462 ................................................. 181a

29 U.S.C. § 464 ................................................. 182a

29 U.S.C. § 466 ................................................. 184a

29 U.S.C. § 481 ................................................. 184a

29 U.S.C. § 483 ................................................. 189a

29 U.S.C. § 501 ................................................. 189a

29 U.S.C. § 523 ................................................. 191a

29 U.S.C. § 524 ................................................. 192a

29 U.S.C. § 524a ............................................... 192a

viii

TABLE OF CONTENTS – Continued

Page

OTHER DOCUMENTS

U.S. Department of Labor Report of Investigation

of Jose Mendoza (September 28, 2018) .......... 194a

By Laws for the Amalgamated Transit Union Local

1637 Las Vegas, Nevada (In Effect 2008) ......202a

Declarations

Declaration of Local 1637 Executive Board

Member Dennis Hennessey (May 18, 2017) .. 217a

Declaration of Local 1637 Executive Board

Member Robbie Harris (May 18, 2017) ......... 221a

Declaration of Local 1637 Executive Board

Member Linda Johnson-Sanders

(May 18, 2017) ................................................ 225a

Declaration of Local 1637 Executive Board

Member Gary Sanders (May 18, 2017) .......... 229a

Declaration of Local 1637 Executive Board

Member Myeko Easley (May 18, 2017) ......... 233a

Declaration of Local 1637 Executive Board

Member Robert Naylor (May 18, 2017) ......... 238a

Declaration of Local 1637 Executive Board

Member Cesar Jimenez (May 18, 2017) ........ 242a

Complaint, Relevant Excerpts

(September 22, 2017)...................................... 246a

ix

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Allis-Chalmers Corp. v. Lueck,

471 U.S. 202 (1985) ................................... passim

Amalgamated Ass’n of St., Elec. Ry. &

Motor Coach Emps. v. Lockridge,

403 U.S. 274 (1971) ................................ 12, 26, 27

Beidleman v. Stroh Brewery Co.,

182 F.3d 225 (3d Cir. 1999) ............................... 31

Cal. State Bd. of Equalization v. Sierra

Summit, 490 U.S. 844 (1989) ............................ 17

Caterpillar, Inc. v. Williams,

482 U.S. 386 (1987) ........................................... 16

Contract Servs. Emp. Tr. v. Davis,

55 F.3d 533 (10th Cir. 1995) ............................. 31

De Veau v. Braisted,

363 U.S. 144 (1960) ................................... passim

DeSantiago v. Laborers Int’l

Union of N. Am., Local No. 1140,

914 F.2d 125 (8th Cir. 1990) ....................... 31, 32

Farmer v. United Bhd. of Carpenters &

Joiners, 430 U.S. 290,

97 S.Ct. 1056 (1977) .................................... 26, 27

FLRA v. Aberdeen Proving Ground,

485 U.S. 409 (1988) ........................................... 25

Garcia v. Serv. Emp. Int’l Union,

993 F.3d 757 (9th Cir. 2021) ........... 10, 16, 26, 29

Hawaiian Airlines v. Norris,

512 U.S. 246 (1994) ........................................ i, 25

x

TABLE OF AUTHORITIES – Continued

Page

Hickman v. Kline,

71 Nev. 55, 279 P.2d 662 (1955) ............. 6, 14, 29

Int’l Bhd. of Boilermakers v. Hardeman,

401 U.S. 233 (1971) ................................... passim

Johnson v. International of United Bhd.,

C. J., 52 Nev. 400 (Nev. 1930) ................. 6, 14, 29

Kitzmann v. Local 619-M Graphic Commc’ns

Conference of Int’l Bhd. of Teamsters,

415 F. App’x 714 (6th Cir. 2011) ................. 31, 32

Lingle v. Norge Div. of Magic Chef,

486 U.S. 399 (1988) ................................... passim

Livadas v. Bradshaw,

512 U.S. 107 (1994) ............................ i, 18, 25, 28

Machinists v. Gonzales,

356 U.S. 617 (1958) ..................................... 26, 27

Plumbers Pipefitters v. Plumbers Pipefitters,

452 U.S. 615 (1981) ............................... 17, 27, 28

Pruitt v. Carpenters’ Local Union No. 225 of

United Bhd. of Carpenters & Joiners,

893 F.2d 1216 (11th Cir. 1990) ................... 31, 32

Scofield v. NLRB,

394 U.S. 423 (1969) ........................................... 26

Smart v. Local 702 IBEW,

562 F.3d 798 (7th Cir. 2009) ............................. 31

Teamsters v. Lucas Flour Co.,

369 U.S. 95 (1962) ..................................... passim

Textile Workers v. Lincoln Mills,

353 U.S. 448 (1957) ........................................... 11

xi

TABLE OF AUTHORITIES – Continued

Page

Thomas v. LTV Corp.,

39 F.3d 611 (5th Cir. 1994) ............................... 31

Wall v. Constr. & Gen. Laborers’ Union,

Local 230, 224 F.3d 168 (2d Cir. 2000) ....... 31, 32

Wooddell v. Electrical Workers,

502 U.S. 93 (1991) ....................................... 27, 28

STATUTES

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

29 U.S.C. § 185 .................................................. passim

29 U.S.C. § 401 .................................................... 13, 23

29 U.S.C. § 411 .................................................... 13, 23

29 U.S.C. § 413 .................................................. passim

29 U.S.C. § 431 .......................................................... 13

29 U.S.C. § 462 ...................................................... 5, 13

29 U.S.C. § 464 ........................................................ 5, 8

29 U.S.C. § 466 .................................................. passim

29 U.S.C. § 481 .......................................................... 13

29 U.S.C. § 483 .................................................. passim

29 U.S.C. § 501 .................................................... 13, 19

29 U.S.C. § 523 .................................................. passim

29 U.S.C. § 524 .............................................. 13, 15, 19

42 U.S.C. § 2000e-5(c) ......................................... 22, 23

42 U.S.C. § 2000e-7 ............................................. 22, 23

xii

TABLE OF AUTHORITIES – Continued

Page

CONGRESSIONAL DOCUMENTS

105 Cong. Rec. 6481-6489 ......................................... 29

1

OPINIONS BELOW

The Petitioners (Plaintiffs-Appellants below)

seek review of the memorandum opinion of the United

States Court of Appeals for the Ninth Circuit, dated

April 7, 2022 (App.1a), which affirmed that Plaintiffs’

state law claims were preempted by Section 301 of

the Labor Management Relations Act (LMRA). On

that same date the Ninth Circuit issued a separate

published opinion, reported at 30 F.4th 879 and

included at App.7a which affirmed that some of

Plaintiffs’ claims were barred by the doctrine of claimsplitting. The orders of the United States District

Court for the District of Nevada regarding § 301 preemption are reproduced at App.24a, 85a, and 130a.

JURISDICTION

The court of appeals entered its memorandum

opinion on April 7, 2022. (App.1a). This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Pertinent statutory provisions are reprinted at

(App.169a).

2

STATEMENT OF THE CASE

A.

Statement of Facts.

ATU Local 1637 was governed by the ATU Constitution and General Laws and the Local 1637 Bylaws

during the period relevant to this case. Petitioner Jose

Mendoza Jr. was elected by Local 1637 membership to

be the Local 1637 President beginning in July 2010.

(App.195a). At the time, Local 1637 was governed by

2008 version of the Local 1637 Bylaws. (App.203a).

Article 4 of the 2008 Bylaws provided that “The

President-Business Agent shall be paid at a daily rate

of 8 hours times the highest hourly rate paid to an

employee in their job classification for 40 hours per

week to perform duties of the office.” Id.

In late 2010, Mendoza, and the former Local 1637

Secretary/Treasurer spoke to various ATU International

officials regarding this pay provision. (App.198a). The

Local 1637 officers inquired whether Article 4 authorized the President to receive the highest hourly rate

of any employee in a job classification in the union, or

if the President was to receive only the highest rate of

pay in the President’s job classification before getting

elected, which would result in unequal pay for Presidents of Local 1637.

Mendoza and the former Local 1637 Secretary/

Treasurer “interpreted the Local 1637 Bylaws as

entitling the president to receive the highest pay rate

of any employee in the union at large for his salary but

they both felt the language of Article 4 was open to

interpretation and consulted international officials for

guidance.” (App.198a). Petitioner Mendoza spoke with

3

ATU International Vice President William McLean and

ATU International Representative Steven MacDougall

over a span of several years regarding the provision,

and “McLean and MacDougall told Mendoza that they

agreed with his interpretation.” Id. One other Local

1637 Board Member, Petitioner Robbie Harris, “personally witnessed Jose Mendoza inform ATU IVP William

Mclean of his interpretation of the Local 1637 Bylaws

Article 4 as authorizing the Local 1637 PBA the highest

rate of pay of any employee/member of Local 1637”

in 2012, and testified that McLean agreed with the

interpretation. (App.221a).

Mendoza’s pay was initially set at the highest rate

of pay for his prior job classification as a driver “until

their interpretation that Mendoza could receive the

highest rate of pay of any employee was confirmed” by

ATU International. (App.198a-199a). In July 2011,

Mendoza’s hourly salary rate increased to the higher

rate of Mechanic A. The Local 1637 Executive Board

did not seek to overturn Mendoza’s decision because it

was believed to have been approved by ATU International. (App.217a-245a). While a couple of disgruntled

members had raised the pay issue at Local 1637

Executive Board meetings and to ATU International,

there “were never enough members who wanted to

challenge the decision to appeal this decision.” Id.

The Local 1637 membership also repeatedly

“approved the budget which incorporated the higher

rate” and “meeting minutes and witnesses support

passing a budget and instances of transparency related

to Mendoza’s compensation.” (App.199a). Mendoza’s

decision to interpret the Local 1637 Bylaws as granting

the Local 1637 President the highest rate of pay of any

employee in the union regardless of their prior job

4

classification was not a unilateral decision. Mendoza

sought guidance and approval from ATU International.

Mendoza ensured several Local 1637 Board members

were present when that approval was given. After ATU

International’s approval, Mendoza informed the Local

1637 Executive Board of the changed the rate of pay

giving them an opportunity to overturn the decision.

Mendoza presented the changed rate of pay to the Local

1637 membership for approval, and the membership

approved the changed rate of pay when passing the

Local 1637 budget.

In 2012, at the directive of ATU International

Representative MacDougal, Local 1637 endeavored to

amend the Local 1637 bylaws. The evidence showed

that the former Local 1637 Secretary/Treasurer, who

was responsible for submitting the bylaws to ATU

International, “improperly submitted an amended

version of the bylaws (a collaboration of unchanged

October 1, 2008 provisions and February 2012 executive

board approved amendments) to the ATU for final

approval. Accordingly, these altered February 2012

bylaws were subsequently approved by the ATU, without prior executive board or membership approval.”

(App.197a-198a).

In 2015, tensions between ATU International President Hanley and Mendoza over a collective bargaining

dispute with a Local 1637 employer culminated in

Mendoza filing charges of corruption “against ATU

International Representative Richie Murphy for his

conduct in negotiations with a Local 1637 employer.”

(App.232a). At that same time, a lone member of Local

1637 petitioned ATU International President Hanley

to intervene regarding the pay issue. Hanley sent

ATU International Vice President James Lindsay to

5

Local 1637 to conduct an investigation into Mendoza’s

salary. (App.230a).

Lindsay involved the Local 1637 Executive Board

in his investigation into Mendoza’s alleged overpayment

in salary. After reviewing the evidence Lindsay and

Mendoza presented the Local 1637 Executive Board

came to a consensus that the 2012 version of the Local

1637 Bylaws approved by ATU International, which

became the subject of the financial malfeasance investigation, had not been approved by the Local 1637

Executive Board or membership. (App.217a-245a). In

November 2016, ATU International President Larry

Hanley ordered Mendoza’s salary be recalculated to

the lower rate based on the 2012 Local 1637 Bylaws.

(App.198a). Mendoza acquiesced to Hanely’s demand,

reduced his salary, began paying a monthly repayment plan, and appealed Hanley’s decision.

To formally remedy the issue, the Local 1637

Executive Board proposed to amend the Local 1637 Bylaws to reflect what the Local 1637 membership had

approved in 2011, including the pay provision anchoring the President’s pay to highest rate in the CBA.

These 2016 Local 1637 Bylaws, including “changes to

Article 4 related to the president’s salary were properly

approved by the executive board and submitted to the

ATU for approval, but denied.” (App.198a). ATU

International subsequently suspended Mendoza and

the rest of the Local 1637 Executive Board from union

office and imposed a trusteeship over Local 1637 for

financial malfeasance. A trusteeship hearing pursuant

to 29 U.S.C. §§ 462 and 464 was held on May 9, 2017,

and the Hearing officer refused to permit Mendoza

to cross-examine many of the witnesses that testified

at the hearing and generally impeded his ability to

6

effectively present the union’s case in opposition to the

trusteeship. (App.217a-245a). This litigation followed.

On September 22, 2017, Mendoza filed action in

the State of Nevada seeking to enjoin the trusteeship

imposed on Local 1637 by ATU International and for

damages stemming from improper union fines and

discipline in breach of the ATU International Constitution. See Mendoza v. Amalgamated Transit Union

International, et al., Case No. A-17-761963-C. Mendoza’s

Nevada Complaint notified the Court that the conduct

alleged fell within the scope of conduct regulated by the

LMRDA and was saved from preemption by the

LMRDA’s numerous savings clauses preserving state

claims and remedies by union members against their

unions to enforce union constitutions. (App.246a-251a;

App.155a-156a). The claims were brought pursuant to

Nevada’s own common law legal standards for the

enforcement of union constitutions and challenging

union trusteeships. (App.251a); Johnson v. International

of United Bhd., C. J., 52 Nev. 400, 412, 288 P. 170, 173

(Nev. 1930); Hickman v. Kline, 71 Nev. 55, 69, 279

P.2d 662, 669 (1955).

During the pendency of the lower court proceedings, because Mendoza was removed from office for

financial malfeasance, the United States Department

of Labor’s (“DOL”) criminal investigation division, the

Office of Labor Management Standards (“OLMS”), was

required to open a criminal investigation into Mendoza’s

alleged financial malfeasance. (App.195a-200a). On September 28, 2018, the:

Conclusive OLMS investigation determined

that . . . the aforementioned payments issued

to Mendoza were not paid at the higher

questionable rate until after international

7

representatives provided interpretational

guidance on various occasions.

(App.195a).

The OLMS found that the “altered February 2012

bylaws were . . . approved by the ATU, without prior

executive board or membership approval” and that

“[i]nevitably, IP Hanley made all of his determinations

as to Mendoza’s alleged wrongdoing based on inapplicable versions of the local’s bylaws including an

unapproved Article 4.” (App.198a). The OLMS also

found that the Local 1637 Executive Board properly

amended the bylaws after the 2016 investigation, which

were approved by the Local and “submitted to the

ATU for approval, but denied.” Id. The OLMS found

that there was evidence of ATU International’s approval

of the salary change and transparency with the Local

1637 membership that approved the budget with the

increased salary multiple times. (App.199a). Ultimately, the “OLMS investigation failed to substantiate a

misappropriation of funds attributable to Mendoza”

and closed the case. (App.200a).

B.

Procedural History.

On September 22, 2017, Petitioner Jose Mendoza

Jr., a member of ATU International, filed action in the

State of Nevada seeking to enjoin a trusteeship imposed

on his local union by ATU International and for

damages stemming from improper union discipline

in breach of the ATU International Constitution

and related tort claims (hereinafter referred to as

“Mendoza I”). ATU International removed Mendoza I

to the United States District Court for the District of

Nevada arguing that the claims were completely pre-

8

empted by § 301 of the LMRA, 29 U.S.C. § 185. Petitioner moved to remand arguing that Congress did

not intend to preempt state law claims and remedies

by union members against their unions to enforce

union constitutions, and endorsed such claims when

preserving state law with the LMRDA’s savings clauses.

The district court found that the claims were completely preempted and denied remand. (App.121a-126a).

ATU International then moved to dismiss the state

tort claims as barred by § 301 of the LMRA, which the

district court granted. (App.139a-146a).

ATU International moved to dismiss the state

breach of contract claims seeking to overturn the trusteeship arguing that the LMRDA’s “presumption of validity”

standard in 29 U.S.C. § 464 applied to the preempted

§ 301 LMRA claims because the standard is applied in

other federal cases challenging union trusteeships when

both § 301 LMRA and LMRDA claims are alleged.

(App.139a-145a). The district court refused to apply the

LMRDA standard, however, because it had previously

found the claims preempted. Id. The only claims that

remained after ATU International’s motion to dismiss

were the two breach of contract claims that proceeded

under § 301 of the LMRA. (App.145a-146a). The district

court invited Mendoza to amend the Mendoza I

complaint to plead the state claims as LMRDA claims

after acknowledging that doing so would forfeit

Mendoza’s straight breach of contract legal theory

pursuant to § 301 of the LMRA.

To avoid losing the § 301 LMRA breach of contract

legal theory Mendoza and seven former members of

the Local 1637 Executive Board filed a subsequent legal

action in federal court pleading the LMRDA claims and

additional state tort claims and federal claims based on

9

some of the same conduct alleged in Mendoza I. Many of

the claims plead conduct that occurred after the conduct

alleged in Mendoza I. (App.88a-92a). The case was docketed with district court Judge James Mahan, the same

judge presiding over Mendoza I. On March 26, 2019, “the

court held a hearing to give the parties an opportunity

to show cause why the court should not consolidate

these related cases.” (App.83a). The district court then

consolidated Mendoza I and Mendoza II to “eliminate

the substantial duplication of labor which would otherwise result from trying the cases separately, and will

avoid the risk of potentially inconsistent outcomes.”

(App.83a-84a). After consolidation, the district court

dismissed all the claims in Mendoza II against ATU

International as impermissibly duplicative pursuant to

the res judicata doctrine of claim splitting. (App.102a107a). The Court then granted summary judgment to

the defendants on the remaining claims.

Petitioner Mendoza appealed challenging the district court’s removal jurisdiction over Mendoza I for

complete preemption pursuant to 29 U.S.C. § 185. Mendoza argued that this Court’s precedent on § 301 of

the LMRA limits complete preemption to claims

requiring interpretation and application of the terms

of a CBA. Petitioner further argued that Congress

preserved Petitioner’s state law claims when passing

the LMRDA and its six savings clauses that preserve

state claims and remedies by union members against

their unions to enforce union constitutions. The

Mendoza II Petitioners also appealed, arguing in

relevant part, that because the district court lacked

jurisdiction over Mendoza I the claim splitting ruling

of the district court was similarly improper.

10

On April 7, 2022, the Ninth Circuit affirmed the

district court’s decision citing to an opinion entered in

Garcia v. Serv. Emp. Int’l Union, 993 F.3d 757, 762

(9th Cir. 2021) (hereinafter the “Garcia case”) earlier

that year holding that union constitutions are contracts between unions within the scope of § 301 of the

LMRA and thus preempted. (App.6a-7a, 152a-164a).

The Ninth Circuit found that the claims in Mendoza II

were impermissible claim splitting because Petitioner

Mendoza, “despite not sharing a formal legal relationship” with the other board members, adequately

represented them in Mendoza I. (App.23a).

Mendoza now petitions this Court for a writ of

certiorari to resolve the question of whether Congress

intended § 301 of the LMRA to completely preempt

state claims and remedies by union members against

their unions to enforce union constitutions despite

passing the LMRDA, which includes six savings clauses

expressly preserving state claims and remedies by

union members against their unions to enforce union

constitutions.

C.

Statutory Background.

This novel issue of § 301 complete preemption

requires an analysis of Congressional intent regarding

two separate acts of Congress, the LMRA and LMRDA.

1. LMRA Statutory Background.

§ 301 of the LMRA was codified in 29 U.S.C. § 185,

and provides that “Suits for violation of contracts

between an employer and a labor organization representing employees in an industry affecting commerce

as defined in this Act, or between any such labor

organizations, may be brought in any district court of

11

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.S.

§ 185. In Textile Workers v. Lincoln Mills, this Court

held that “301(a) is more than jurisdictional” authorizing the Federal courts to fashion a body of Federal

substantive law to enforce CBAs. 353 U.S. 448, 450–

52 (1957).

“The pre-emptive effect of § 301 was first analyzed

in Teamsters v. Lucas Flour Co., 369 U.S. 95, 103

(1962), where the Court stated that the ‘dimensions of

§ 301 require the conclusion that substantive principles of federal labor law must be paramount in the

area covered by the statute [so that] issues raised in

suits of a kind covered by § 301 [are] to be decided

according to the precepts of federal labor policy.’” See

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 209 (1985).

In Lueck, this Court addressed whether a state tort

claim alleging the mishandling of “a claim under a

disability plan included in a collective-bargaining

agreement” was preempted by § 301. Id. This Court

ultimately held in Lueck that “that when resolution of

a state-law claim is substantially dependent upon analysis of the terms of an agreement made between the

parties in a labor contract, that claim must either be

treated as a § 301 claim, . . . or dismissed as pre-empted.” Id. at 220.

Three years later, in Lingle, this Court this Court

clarified its opinion in Lueck, citing its prior holding

that “Section 301 governs claims founded directly on

rights created by [CBAs], and also claims ‘substantially dependent on analysis of a [CBA].’” Lingle, 486

U.S. at 410 n.10 citing Lueck, 471 U.S. at 220. This

Court held that “an application of state law is

12

preempted by § 301 . . . only if such application requires

the interpretation of a [CBA].” Id. at 413. (emphasis

added).

The core aspect of the complete preemption

machinery of § 301 of the LMRA has always been

to enforce arbitration agreements because of “the

central role of arbitration in our ‘system of industrial

self-government.’” Lueck, 471 U.S. at 219. Interpretive

uniformity of CBAs has always been the bedrock of

this Court’s preemption precedent. As this Court

“explained in Lueck, ‘the need to preserve the effectiveness of arbitration was one of the central reasons

that underlay the Court’s holding in Lucas Flour.’”

Lingle, 486 U.S. at 411. To prevent employees from

bringing employment related grievances under the

guise of state law claims, this Court has long held that

when a state law cause of action is either founded on

a right created by a CBA or involves interpretation

of the CBA, then the claim is preempted.

2. LMRDA Statutory Background.

The LMRDA was passed because “[d]uring the

1950’s there came to light various patterns of union

abuse of power.” Lockridge, 403 U.S. at 321 (White and

Berger dissenting). “Congress acted to correct these

evils by directly addressing itself to some aspects of

union-member affairs.” Id. “Beyond any doubt whatever,

although Congress directly imposed some far-reaching

federal prohibitions on union conduct, it specifically

denied any pre-emption of rights or remedies created

by either state law or union constitutions and bylaws.”

Id. This Court has consistently recognized that the

LMRDA “reflects congressional awareness of the

13

problems of pre-emption in the area of labor legislation, and which did not leave the solution of questions of pre-emption to inference.” De Veau v. Braisted,

363 U.S. 144, 156 (1960). This Court has repeatedly

noted that “Congress . . . preserved state law remedies

by § 103 of the LMRDA, 29 U.S.C. § 413.” Int’l Bhd. of

Boilermakers v. Hardeman, 401 U.S. 233, 244 n.11

(1971).

The LMRDA was intended by Congress to be

“supplementary legislation that will afford necessary

protection of the rights and interests of employees

and the public generally.” 29 U.S.C. § 401. The

legislation being supplemented included “the [LMRA]

as amended.” Id. This later act of Congress, which

supplemented the LMRA, included seven (7) separate

anti-preemption savings clauses that preserved state

claims and remedies by union members against their

unions to enforce union constitutions. See 29 U.S.C.

§§ 413; 466; 483; 501; 523; 524; 524(a); see also De Veau,

363 U.S. at 156; Hardeman, 401 U.S. at 244 n.11;

(App.155a-156a). That is, Congress has “affirmatively

endorsed” state law claims and remedies to enforce

union constitutions. Lingle, 486 U.S. at 413.

The LMRDA expressly references unions constitutions in every title of the act. See 29 U.S.C. §§ 411;

413; 431; 462; 481; 501. Every Title of the LMRDA also

includes a broad savings clause that “preserve state

claims and remedies brought by union members

against their unions to enforce union constitutions.”

(App.155a-156a).

29 U.S.C. § 413 states that “Nothing contained in

this title . . . shall limit the rights and remedies of any

member of a labor organization under any State or

Federal law or before any court or other tribunal, or

14

under the constitution and bylaws of any labor

organization.” 29 U.S.C. § 413.

29 U.S.C. § 466 provides that “The rights and

remedies provided by this title . . . shall be in addition

to any and all other rights and remedies at law or in

equity,” preserving state laws regulating union

trusteeships. 29 U.S.C. § 466. 29 U.S.C. § 483 preserves

all existing rights and remedies to enforce a union’s

constitution and bylaws with respect to union elections

prior to the holding of the election. See 29 U.S.C.

§ 483.

29 U.S.C. § 523 is known as the LMRDA’s catchall

savings clause, providing that “[e]xcept as explicitly

provided to the contrary, nothing in this Act shall

reduce or limit the responsibilities of any labor

organization or any officer, agent, shop steward, or

other representative of a labor organization, or of

any trust in which a labor organization is interested,

under any other Federal law or under the laws of any

State, and except as explicitly provided to the contrary,

nothing in this Act shall take away any right or bar

any remedy to which members of a labor organization

are entitled under such other Federal law or law of

any State.” See 29 U.S.C. § 523. At the time the LMRDA

was passed, Nevada had its own laws and remedies

for enforcing union constitutions and to review the

imposition of union trusteeships, the very claims alleged

in Mendoza I. Johnson, C. J., 52 Nev. at 412; Hickman,

71 Nev. at 69.

Congress affirmatively endorsed state claims

and remedies by union members against their unions

to enforce union constitutions in every Title of the

LMRDA, saving such claims from preemption including

those alleged in Mendoza I. (App.155a); see also 29

15

U.S.C. §§ 413; 466; 483; 501; 523; 524; 524(a); see also

De Veau, 363 U.S. at 156; Hardeman, 401 U.S. at 247-48.

D. The Decision Below.

The Ninth Circuit panel in this case applied the

earlier ruling in the Garcia case without conducting

further analysis. Petitioner challenges the reasoning

of the Garcia panel that state claims to enforce a union

constitution are preempted by § 301 of the LMRA as

applied in this case. The Ninth Circuit’s decision holds

that despite Congress’s clear expression of intent to

preserve state claims and remedies by union members

against their unions to enforce union constitutions as

expressed in the LMRDA, § 301 of the LMRA, the

earlier less specific act operates to preempt state law.

(App.155a-162a). Rather than analyze Congressional

intent, the Ninth Circuit held that any and all “State

law claims that fall within the area of § 301 are

considered federal law claims and are preempted and

removable.” (App.153a)

Under the Ninth Circuit’s rule, whether a union

member’s claim for breach of a union constitution is

preempted depends not on Congressional intent to

preempt union constitution claims, but whether the contract at issue is potentially actionable under § 301.

(App.151a-157a). Petitioners argue that Congressional intent to preempt state law is the ultimate touchstone, and Congress did not intend to preempt Mendoza’s state law claims in this case.

16

REASONS FOR GRANTING THE PETITION

The Ninth Circuit panel’s decision in this case

and the Garcia case meets all the conventional criteria

for certiorari. The Ninth Circuit’s decision directly

contrary to decades of Supreme Court decisions on § 301

preemption, union constitution claims and the LMRDA.

The decision of the Ninth Circuit decided an important

question of federal law that has not been, but should

be, settled by this Court. The Ninth Circuit’s decision

conflicts with decisions of other courts of appeals.

I.

THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF THIS COURT.

The Ninth Circuit panel’s decision in the Garcia

case and Mendoza I directly conflicts with three legal

principles established by Supreme Court labormanagement precedent.

A. The Decision Below Conflicts with the

Decisions of This Court Because It Fails

to Analyze and Willfully Ignores

Congressional Intent Not to Preempt

State Claims and Remedies to Enforce

Union Constitutions.

This Court has repeatedly held that the proper

analysis for any court reviewing a novel issue of

preemption is to determine whether Congress intended

to preempt state law. “[T]he question whether a certain state action is pre-empted by federal law is one of

congressional intent.” Lueck, 471 U.S. at 220; Caterpillar, Inc. v. Williams, 482 U.S. 386, 395 (1987). Only

Congress has the “power to pre-empt state law [which]

17

is derived from the Supremacy Clause of Art. VI of the

Federal Constitution.” Id. To determine the purpose

of Congress, the courts are instructed to look “to the

plain meaning and legislative history of the statutory

provision.” Cal. State Bd. of Equalization v. Sierra

Summit, 490 U.S. 844, 845 (1989). If Congressional

intent is not clear from the plain language of the

statute itself, the courts are instructed to look at the

legislative history.

It must be stressed that “Congress did not state

explicitly whether and to what extent it intended

§ 301 of the LMRA to pre-empt state law.” Lueck, 471

U.S. at 208-09. When Congress has not expressed

intent to preempt, this Court had made clear that

lower courts must “sustain a local regulation ‘unless

it conflicts with federal law or would frustrate the federal scheme, or unless the courts discern from the

totality of the circumstances that Congress sought to

occupy the field to the exclusion of the States.’” Id.

“The purpose of Congress is the ultimate touchstone.”

Id.

The Ninth Circuit’s decision flouts the settled principle that before preempting state law the court must

determine Congressional intent to preempt. (App.155a161a). In the panel’s view, Mendoza and Garcia’s claims

are preempted simply because “‘a union constitution

is a ‘contract’ within the plain meaning of § 301(a).’”

Id. at 83a quoting Journeymen, 452 U.S. at 622.

According to the Ninth Circuit, “State law claims that

fall within the area of § 301 are considered federal law

claims and are preempted and removable.” (App.153a).

The Ninth Circuit failed to appreciate, however,

that “Congress did not state explicitly whether and to

what extent it intended § 301 of the LMRA to pre-

18

empt state law,” thus requiring analysis of Congressional intent before expanding § 301 preemption to

claims seeking to enforce union constitutions. Lueck,

471 U.S. at 208-09. That is, regardless of whether

a union constitution is a contract within the plain

meaning of § 301, because § 301 has no express preemption provision the lower court must analyze

Congressional intent and permit the state law claim

“‘unless it conflicts with federal law or would frustrate

the federal scheme,” or Congress has occupied the

field. Id. This Court has made clear that “not every

dispute concerning employment, or tangentially involving a provision of a collective-bargaining agreement, is

pre-empted by § 301.” Id. at 211. Congress did not

occupy the entire field of § 301 labor disputes. Id. The

Ninth Circuit did not analyze Congressional intent

nor hold that permitting union constitution claims in

state court conflicts with federal law or would frustrate

any federal scheme. (App.152a-161a). This Court’s

Congressional intent analysis as established in Lueck

and its progeny is not permissive. Williams, 482 U.S.

at 395; Lingle, 486 U.S. at 410 n.10; Livadas, 512 U.S.

at 120.

Importantly, here, the Ninth Circuit panel willfully

ignored the absolutely clear expression of Congressional

intent to preserve state claims and remedies to

enforce union constitutions when passing the

LMRDA. (App.155a-156a). The Ninth Circuit panel held

that the plain meaning of the LMRDA’s “six savings

clauses . . . operate to preserve state claims and

remedies brought by union members against their

unions to enforce union constitutions.” Id. By

expressly preserving state claims and remedies by

union members against their unions to enforce union

19

constitutions, Congress has “affirmatively endorsed”

state claims and remedies in this field of labor law.

Lingle, 486 U.S. at 412.

The Ninth Circuit actually held that the plain

language of the LRMDA savings clauses demonstrate

Congressional intent “to preserve state claims and

remedies brought by union members against their

unions to enforce union constitutions.” Id. The Ninth

Circuit then proceeded to ignore this expression of

Congressional intent not to preempt state claims and

remedies brought by union members against their

unions to enforce union constitutions because “three

of the clauses cited by the Union Members are entirely

inapplicable.” (App.155a-156a). The three clauses cited

as being inapplicable are 29 U.S.C. §§ 524, 483, and

501. The Ninth Circuit acknowledged, however, that

the other three savings clauses were applicable to the

subject matter of Garcia’s state law claims: 29 U.S.C.

§§ 413 (union discipline), 523 (fiduciary duty); and 466

(trusteeships). Id.

The Ninth Circuit explained that the LMRDA

savings clauses do not operate as an exception to § 301

LMRA preemption because the LMRDA “contains no

words repealing § 301 or its preemptive effect.”

(App.156a). This conclusion evidences a fundamental

misunderstanding of this Court’s § 301 LMRA precedent. The first case to discuss the preemptive effect

of § 301 of the LMRA was Lucas Flour Co., 369 U.S.

at 103, which was decided in 1962 three years after

the LMRDA was passed. See Lueck, 471 U.S. at 209.

The Lucas Flour Co. decision, like all future § 301

LMRA preemption precedent, analyzed Congressional

intent to preempt state law based on legislative history

because “Congress did not state explicitly whether

20

and to what extent it intended § 301 of the LMRA to

pre-empt state law,” triggering the Congressional

intent analysis. Id. at 208-09.

The LMRDA contains “no words repealing § 301

or its preemptive effect” because this Court had not

established the § 301 preemption doctrine at the time

the LMRDA was passed. Id. Instead, anticipating that

the Court might continue to expand its existing labormanagement preemption doctrine, Congress passed

the LMRDA and every other subsequent act in the

field of labor-management to include express preemption and savings clauses. This Court has already

acknowledged that “the 1959 Act . . . reflects

congressional awareness of the problems of preemption in the area of labor legislation, and which did

not leave the solution of questions of pre-emption to

inference.” De Veau, 363 U.S. at 156.

The Ninth Circuit also highlighted that “none of

the LMRDA’s savings clauses concern the subject of

uniform interpretation of labor contracts.” (App.156a).

Again, the Ninth Circuit panel is technically correct

but fails to understand this Court’s LMRA and LMRDA

precedent and the Congressional intent behind the

LMRDA. None of the LMRDA’s savings clauses concern

the subject of uniform interpretation of labor contracts

because Congress made clear that state claims and

remedies by union members against their unions to

enforce union constitutions were to be preserved.

(App.155a). That is, Congress endorsed multiformity

for union constitutions. Congress was aware of the

problems with preemption in the field of labor legislation, and chose not to leave the issue of preemption

of union constitution claims to inference. De Veau, 363

U.S. at 156. Congress understood that “State law, in

21

many circumstances, may go further.” Hardeman, 401

U.S. at 244 n.11. “But Congress, which preserved

state law remedies by § 103 of the LMRDA, 29 U.S.C.

§ 413, was well aware that even the broad language of

Senator McClellan’s original proposal was more

limited in scope than much state law.” Id.

The Ninth Circuit correctly acknowledged that

despite the fact that there is a “topical overlap between

the statutes, ‘[i]t is not sufficient . . . to establish, that

subsequent laws cover some or even all of the cases

provided for by the prior act; for they may be merely

affirmative, or cumulative or auxiliary.’” (App.156a157a). The panel then noted that “Congress was aware

that the rights conferred by the [LMRDA] overlapped

those available under state law and other federal

legislation, and expressly provided that these rights

were to be cumulative[,]’ . . . with the new protections

contained in the LMRDA overlapping and supplementing existing state and federal protections.” (App.

156a-157a) (emphasis added). Because § 301 preemption did not exist at the time the LMRDA was passed

by Congress, the Congressional intent that the LMRDA

preserve all other existing overlapping state law and

federal rights via the savings clauses precludes, or

otherwise establishes an exception to applying § 301

preemption for all overlapping state law that existed

at the time including Nevada’s union constitution and

trusteeship law. Id. The LMRDA savings clauses do

not repeal § 301’s preemptive effect, they exempt state

rights that overlap with the LMRDA from preemption.

The Ninth Circuit’s new rule permits § 301 of the

LMRA to preempt those overlapping state protections

preserved by Congress rendering the savings clauses

nugatory.

22

As this Court clearly acknowledged in Lingle some

state laws may be distinguished as being excluded

from § 301 preemption when “Congress has affirmatively endorsed state . . . remedies” when passing a

later, more specific labor act. Lingle, 486 U.S. at 412.

The act the Lingle Court was referencing was “Title

VII of the Civil Rights Act of 1964,” citing Title VII’s

two anti-preemption savings clauses that affirmatively

endorsed state remedies for employment discrimination. Id. citing 42 U.S.C. §§ 2000e-5(c) and 2000e-7.

The lower court had “distinguished those laws because

Congress has affirmatively endorsed state antidiscrimination remedies in Title VII . . . whereas there is no

such explicit endorsement of state workers’ compensation laws.” Id. While this Court found that “distinction

is unnecessary for determining whether § 301 pre-empts

the state law in question” in the Lingle case, it his

highly relevant here given that this Court has never

concluded that Congress intended § 301 of the LMRA

to preempt state claims and remedies by union members

against their unions to enforce union constitutions.

486 U.S. at 412. Because no prior Supreme Court

precedent hold that Congress intended to preempt

state law claims and remedies to enforce union constitutions, the “affirmative endorsement” of Mendoza’s

state claims by Congress expressed in the LMRDA’s

savings clauses is of paramount importance.

The Ninth Circuit rejected the argument that the

LMRDA savings clauses exempt state claims and

remedies by union members against their unions to

enforce union constitutions from § 301 complete preemption because “[t]he LMRDA contains no words

repealing § 301 or its preemptive effect.” (App.155a156a).

23

A later labor act does not, however, need to

expressly repeal § 301 of the LMRA to affirmatively

endorse state law claims and remedies that might also

be actionable under § 301 of LMRA. Lingle, 486 U.S.

at 412 citing 42 U.S.C. §§ 2000e-5(c) and 2000e-7.

Like the LMRDA, Title VII of the Civil Rights Act of

1964 does not include any words repealing § 301 of the

LMRA. Instead, Congress included two broad savings

clauses affirmatively endorsing state claims and remedies for employment discrimination. Id. Congress did

the same thing with the LMRDA, which supplemented

the LMRA (see 29 U.S.C. § 401), by affirmatively

endorsing state claims and remedies by union members

against their unions to enforce union constitutions.

(App.155a-156a). Like the savings clauses in Title VII,

the LMRDA’s savings clauses evidence Congressional

intent to “preserve state claims and remedies brought

by union members against their unions to enforce

union constitutions.” Id.

Mendoza and Garcia brought their state court

actions to challenge imposition of a trusteeship over

their local unions in breach of international union constitutions, claims affirmatively endorsed by Congress

when preserving such claims in 29 U.S.C. § 466. Id.

Similarly, Mendoza’s challenge to the fine and

imposition of union discipline by ATU International in

breach of the ATU International Constitution falls

squarely within the scope of 29 U.S.C. §§ 411 and 413,

and were affirmatively endorsed by Congress via the

savings clause in § 413. Id. This Court has never concluded that union constitution claims are preempted

by § 301, nor that Congress intended to preempt the

field of labor law that regulates internal union governance and the union-union member relationship.

24

This Court has, however, repeatedly held that

“the 1959 Act . . . reflects congressional awareness of

the problems of pre-emption in the area of labor

legislation, and which did not leave the solution of

questions of pre-emption to inference.” De Veau, 363

U.S. at 156. This Court has also held that “Congress

. . . preserved state law remedies by § 103 of the

LMRDA, 29 U.S.C. § 413.” Hardeman, 401 U.S. at 244

n.11. If § 301 is allowed to preempt state remedies

Congress preserved and affirmatively endorsed when

passing the LMRDA, the federal scheme established

by the LMRDA is frustrated by application of § 301

preemption. Lueck, 471 U.S. at 208-09; Lingle, 486 U.S.

at 412.

In short, it is well established principle of preemption that intent of Congress to preempt state law

is the ultimate touchstone of any preemption analysis.

The Ninth Circuit’s decision in this case ignoring clear

Congressional intent to “preserve state claims and

remedies brought by union members against their

unions to enforce union constitutions” when finding

these claims were preempted by § 301 of the LMRA is

in conflict with this Court’s preemption precedent and

Congressional intent.

B. The Decision Below Conflicts with the

Decisions of This Court That State Claims

Are Preempted by § 301 Only If Interpretation of a CBA Is Required.

Just three years after this Court decided Lueck it

was faced with another novel issue of § 301 preemption and granted certiorari. See Lingle, 486 U.S.

at 413. This Court cited its decision in Lueck, holding

that “Lueck faithfully applied the principle of § 301

25

preemption developed in Lucas Flour: if the resolution of a state-law claim depends upon the meaning

of a collective-bargaining agreement, the application

of state law . . . is pre-empted.” Id. at 405-06. This

Court then clarified that “an application of state law

is preempted by § 301 of the [LMRA] only if such

application requires the interpretation of a [CBA].” Id.

at 413; see also Livadas, 512 U.S. at 123-24; see also

Hawaiian Airlines v. Norris, 512 U.S. 246, 262 (1994).

The Ninth Circuit’s decision in this case flouts

this long settled legal principle by extending § 301

preemption to all potential “labor contracts” that might

be actionable under § 301 in federal court. The Ninth

Circuit panel’s decision extends this Court’s reasoning

in Lingle and Lividas by removing the term “collectivebargaining agreement” from the text of this Court’s

decisions and replacing it with the broader “labor

contract” language used in the earlier case Lingle

narrowed, Lueck. (App.155a-157a).

In short, it is well established by this Court’s precedent “that an application of state law is preempted by

§ 301 of the [LMRA] only if such application requires the

interpretation of a [CBA].” Lingle, 486 U.S. at 413. It

is also well established that “[t]he phrase ‘only if’

denotes exclusivity; it does not suggest one of multiple

options.” FLRA v. Aberdeen Proving Ground, 485 U.S.

409, 412 (1988). The Ninth Circuit’s decision in this case

conflicts with this Court’s precedent by expanding

§ 301 complete preemption to state claims and remedies

that do not require interpretation or application of the

terms of a CBA.

26

C. The Decision Below Also Conflicts with

the Decisions of This Court That Hold

That Union Member Suits to Enforce

Union Constitutions Are Actionable in

State Court.

This Court first addressed the issue of union member suits against their unions to enforce union constitutions in state court in Machinists v. Gonzales, 356

U.S. 617 (1958). In Gonzales, this Court held that a

union member could bring legal action in state court

for breach of an international union constitution because

internal union disputes were a peripheral concern of

the act. Id. The Ninth Circuit’s holding in this case

and the Garcia case rejected Gonzales as inapplicable,

holding that the ruling in Gonzales concerned only

the scope of Garmon preemption. (App.152a-153a

n2).

The Gonzales case however, dealt expressly

with the LMRA, preemption and state claims to enforce

union constitutions. Gonzales, 356 U.S. at 621. This

Court has consistently affirmed the result reached

in Gonzales that disputes between union members

and their unions to enforce union constitutions are

actionable in state court under state law. Scofield v.

NLRB, 394 U.S. 423, 426 n.3 (1969); see also Amalgamated Ass’n of St., Elec.Ry. & Motor Coach Emps. v.

Lockridge, 403 U.S. 274, 276 (1971); Farmer v. United

Bhd. of Carpenters & Joiners, 430 U.S. 290, 301 n.10,

97 S.Ct. 1056, 1064 (1977). This Court cited Gonzales

in Lockridge, affirming the decision in Gonzales that

union constitution claims were actionable in state

court so long as they did not implicate Garmon preemption. Lockridge, 403 U.S. at 294. In Farmer, this

Court noted that its decision in Lockridge “stated that

27

‘Garmon did not cast doubt upon the result reached in

Gonzales,’ id., at 295, since Garmon cited Gonzales as

an example of the nonapplicability of the normal preemption rule ‘where the activity regulated was a

merely peripheral concern of the . . . Act.’” Farmer, 430

U.S. at 301 n.10.

The Ninth Circuit’s decision holds that the union

constitution claims at issue in Gonzales should have

been preempted as “labor contracts” because they are

actionable under § 301 of the LMRA, implying a full

repeal of the result reached in Gonzales. Farmer, 430

U.S. at 301 n.10. This Court discussed § 301 preemption extensively in its decisions in Lockridge and

Farmer never once equating union constitutions to

CBAs preempted by § 301, which has its own exception

to Garmon preemption. Id. This Court could have

overruled Gonzales in Lockridge and Farmer and did

not. Importantly, the seminal cases relied on by the

Ninth Circuit as supporting union constitution

preemption held only that union constitutions can be

§ 301 contracts actionable in federal court. (App.152a156a) quoting Journeymen, 452 U.S. at 622.

In Journeymen, this Court held that “a union constitution is a ‘contract’ within the plain meaning of

§ 301(a).” See Journeymen, 452 U.S. at 622. This Court’s

decision in Journeymen did not address preemption.

This Court did, however, cite Gonzales as precedent.

Id. citing Gonzales, 356 U.S. at 618-619. This Court

did not overrule the result reached in Gonzales when

it decided Journeymen. Id. The Ninth Circuit also

cited to this Court’s holding in Wooddell for the

principle that a union constitution is actionable under

§ 301 of the LMRA. (App.83a). Like Journeymen, this

Court’s holding in Wooddell did not deal with

28

preemption, nor did it overrule this Court’s precedent

that union members may sue to enforce union constitutions in state court. 502 U.S. at 101.

In short, it is a well-established legal principle

that union members may sue their unions to enforce

union constitutions in state court under state law. The

Ninth Circuit’s decision conflicts with the decisions of

this Court by inferring repeal of Gonzales and its

progeny in Journeymen and Wooddell, neither of which

addressed preemption.

II. THE QUESTION PRESENTED IS EXCEPTIONALLY

IMPORTANT AND WARRANTS REVIEW.

The Ninth Circuit’s unprecedented approach to

§ 301 preemption will have immediate and far-reaching

consequences. By extending § 301 preemption to any

potential labor contract that might be actionable

under § 301 the Ninth Circuit has opened the door to

more and more types of contracts being preempted by

§ 301 without regard to Congressional intent. That

is, by replacing the words “collective bargaining agreement” in this Court’s decisions in Lingle and Livadas

with the much broader term “labor contract,” § 301

preemption is no longer limited to interpretation and

application of the terms of a CBA. Any contract that

is potentially actionable under § 301 is now preempted

under the Ninth Circuit’s new rule and lower courts

will once again begin expanding on “the principle of

§ 301 preemption developed in Lucas Flour: if the

resolution of a state-law claim depends upon the

meaning of a collective-bargaining agreement, the application of state law . . . is pre-empted” to more and

more state laws and claims that do not require

interpretation or application of the terms of a CBA.

Lingle, 486 U.S. at 405-06.

29

The Ninth Circuit’s new rule expanding § 301

preemption to union constitutions is only the beginning

and without this Court’s review, more and more types

of cases traditionally brought in state court will be

found preempted by § 301. (App.155a). The Ninth

Circuit’s decision also forecloses on the entire state

forum expressly preserved by Congress for adjudicating

disputes between union members and their unions to

enforce union constitutions, forcing union members to

proceed in federal court where delays often result in

union member claims being mooted, which happened in

this case and the Garcia case.

As this Court noted in Hardeman, the LMRDA

provides limited remedies and “State law, in many

circumstances, may go further.” Hardeman, 401 U.S.

at 244 n.11. “But Congress, which preserved state law

remedies by § 103 of the LMRDA, 29 U.S.C. § 413, was

well aware that even the broad language of Senator

McClellan’s original proposal was more limited in

scope than much state law.” Id. citing 105 Cong. Rec.

6481-6489. By allowing § 301 of the LMRA to preempt

union constitution claims, millions of union members

lose the state forum and the broader state remedies

Congress expressly sought to preserve and endorse

with the LMRDA, like Nevada’s own law on enforcing

union constitutions and reviewing the imposition

of union trusteeships by international unions over local

union affiliates. Johnson, C. J., 52 Nev. at 412; Hickman,

71 Nev. at 69. If the LMRDA “reflects congressional

awareness of the problems of pre-emption in the area

of labor legislation” and intent to “not leave the

solution of questions of pre-emption to inference,”

inferring that the earlier less specific act, § 301 of the

LMRA, preempts the same conduct regulated and

30

saved from preemption by the LMRDA undermines

that Congressional awareness and intent. De Veau,

363 U.S. at 156.

This case raises one of the significant problems of

preemption in the area of labor-legislation Congress

was trying to avoid with the LMRDA. By allowing

defendants to remove state claims alleging conduct

and seeking to enforce union constitutions that were

undisputedly saved from preemption by the LMRDA

(App.155a-156a) via § 301 of the LMRA, the intent of

Congress to “not leave the solution of questions of preemption to inference” in regards to conduct regulated

by the LMRDA is undermined and the very claims

preserved by Congress have been inferred as preempted

simply because a union constitution could also be actionable under the broad language of § 301 of the LMRA.

This case presents an ideal vehicle to address this

important issue, which has closed an entire state forum

Congress preserved for millions of union members. Because Mendoza I was removed as completely preempted

by § 301 of the LMRA and then consolidated with

Mendoza II, which alleged LMRDA claims for some of

the same conduct, the Ninth Circuit in this case and

the Garcia case was forced to reconcile its decision to

preempt union constitution claims pursuant to § 301

of the LMRA with the Congressional intent of savings

clauses in the LMRDA that it acknowledged was to

“preserve state claims and remedies brought by union

members against their unions to enforce union constitutions.” (App.11a-12a, 155a-156a).

This unique procedural posture makes this case

the ideal case to resolve this issue, as all other

circuits that have found union constitutions completely

preempted by § 301 did not have to analyze the

31

LMRDA. Kitzmann v. Local 619-M Graphic Commc’ns

Conference of Int’l Bhd. of Teamsters, 415 F. App’x 714

(6th Cir. 2011); Wall v. Constr. & Gen. Laborers’

Union, Local 230, 224 F.3d 168 (2d Cir. 2000);

DeSantiago v. Laborers Int’l Union of N. Am., Local

No. 1140, 914 F.2d 125 (8th Cir. 1990); Pruitt v.

Carpenters’ Local Union No. 225 of United Bhd. of

Carpenters & Joiners, 893 F.2d 1216 (11th Cir. 1990).

These circuits analyzed union constitution complete

preemption via § 301 in a vacuum without consideration of the LMRDA, which supplemented the LMRA

and preserved these state claims and remedies in this

field of labor law.

III. THE DECISION BELOW CONFLICTS WITH THE

DECISIONS OF OTHER COURTS OF APPEAL.

The Ninth Circuit’s decision holds that union

constitutions, which are not CBAs, are completely

preempted by § 301 of the LMRA. (App.3a). Under the

Ninth Circuit’s new rule, Congressional intent to preempt or preserve state law claims and remedies is

not the ultimate touchstone and any labor contract

potentially actionable under § 301 is completely

preempted. (App.155a-157a).

The Ninth Circuit’s holding directly conflicts with

the decisions of the Third, Fifth, Seventh, and Tenth

Circuits, which have faithfully applied that this

Court’s ruling in Lingle limiting § 301 preemption to

claims involving the interpretation and application of

the terms of CBAs. Beidleman v. Stroh Brewery Co.,

182 F.3d 225 (3d Cir. 1999); Smart v. Local 702 IBEW,

562 F.3d 798, 809 (7th Cir. 2009); Contract Servs. Emp.

Tr. v. Davis, 55 F.3d 533, 536 (10th Cir. 1995); Thomas

v. LTV Corp., 39 F.3d 611, 620 (5th Cir. 1994).

32

The Ninth Circuit has aligned itself with the

decisions of the Second, Sixth, Eighth and Eleventh

Circuits that § 301 preemption applies to non-CBA

labor contracts like union constitutions. Kitzmann v.

Local 619-M Graphic Commc’ns Conference of Int’l

Bhd. of Teamsters, 415 F. App’x 714 (6th Cir. 2011);

Wall v. Constr. & Gen. Laborers’ Union, Local 230,

224 F.3d 168 (2d Cir. 2000); DeSantiago v. Laborers

Int’l Union of N. Am., Local No. 1140, 914 F.2d 125

(8th Cir. 1990); Pruitt v. Carpenters’ Local Union No.

225 of United Bhd. of Carpenters & Joiners, 893 F.2d

1216 (11th Cir. 1990). This Court’s review is necessary

to reconcile and resolve this conflict.

CONCLUSION

The petition for writ of certiorari should be

granted.

Respectfully submitted,

MICHAEL J. MCAVOYAMAYA, ESQ.

COUNSEL OF RECORD

1100 E. BRIDGER AVE.

LAS VEGAS, NV 89101

(702) 299-5083

MIKE@MRLAWLV.COM

COUNSEL FOR PETITIONERS

SEPTEMBER 6, 2022