Opposition Brief — International Union of Operating Engineers Local No. 12 v. Wilson

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atthe JUL 3.0 1990.

OFTiseor—THE CLERK

In The a

Supreme Court of the United States

October Term, 1991

4

INTERNATIONAL UNION OF OPERATING

ENGINEERS LOCAL NO. 12, AFL-CIO,

Petitioner,

CARROLL WILSON, et al.,

Respondents.

+

Petition For A Writ Of Certiorari

To The United States Court Of

Appeals For The Ninth Circuit

‘

OPPOSITION TO PETITION FOR A

WRIT CF CERTIORARI

.

RICHARD M. FREEMAN

SHEPPARD, MULLIN, RICHTER

& Hampton

(Counsel of Record)

501 West Broadway, 19th Floor

San Diego, California 92101

(619) 338-6500

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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QUESTION PRESENTED

Whether a state law claim for fraud is preempted by

Section 301 of the Labor Management Relations Act, 29

U.S.C. § 185, merely because the tortfeasor is employed

by a labor union, where the labor union does not repre-

sent the employer victim’s employees, and where the

fraud in question takes place completely outside the con-

text of collective bargaining and has nothing to do with

the ordering or development of labor relations or work-

ing conditions?

ii

LIST OF PARTIES

TO THE PROCEEDING

The following list comprises all parties to the under-

lying District Court action, and all related corporate enti-

ties pursuant to Rule 29.1.

Operating Engineers Pension Trust

Operating Engineers Health and Welfare Fund

Operating Engineers Vacation-Holiday Savings

Trust

Operating Engineers Training Trust

Carroll E. Wilson

Patricia J. Wilson

Wilson Equipment, a Partnership

C. E. Wilson Corporation

International Union of Operating Engineers,

Local No. 12

Eugene Kinsey

ili

TABLE OF CONTENTS

Page

EE I ee ee 1

ea sie so b6 464 vs voc net's cise 1

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

avepmemeres Gr fete CASE... 2. ccc cece ec cceeee: 2

ARGUMENT: THERE IS NO REASON TO GRANT

rg odd in gin cheeses veseecees

1.

THE SUPPOSED “SPLIT” IN THE CIRCUITS

HAS NOTHING TO DO WITH THE RELE-

Weeree Goose GY THIS CASE.................

GARMON PREEMPTION: THE RELATION-

SHIP BETWEEN BAD FAITH BARGAINING

UNDER THE NATIONAL LABOR RELATIONS

ACT AND SECTION 301 OF THE LABOR

MANAGEMENT RELATIONS ACT IS NOT

PROPERLY A SUBJECT OF THIS CASE......

THE DECISION BELOW IS CORRECT: UNDER

THIS COURT’S DEVELOPMENT OF SECTION

301, A STATE LAW FRAUD CLAIM ARISING

COMPLETELY OUTSIDE ANY COLLECTIVE

BARGAINING RELATIONSHIP AND NOT

BASED IN ANY WAY ON THE CONTENT OF

THE ALLEGED C@LLECTIVE AGREEMENT IS

NOT PREEMPTED MERELY BECAUSE THE

TORTFEASOR IS EMPLOYED BY A LABOR

lV

TABLE OF AUTHORITIES

Page

Cases

Allis-Chalmers v. Lueck, 471 U.S. 202 (1985) .......... 12

Caterpiller, Inc. v. Williams, 482 U.S. __, 107 S.Ct.

SENN Aiuto ae bd dae ea esd Waa eeees eh ewoean 12

.De Arroyo v. Sindicato de Trabajadores Packing, 425

Pome PE UU GG. COPED sw nsidne ce centaesceceveunnenés 5

DelCostello v. International Brotherhood of Teamsters,

Se Se CO SE oor ocdacphnas¥e cebaebsusedenns 11

Dowd Box v. Courtney, 368 U.S. 502 (1962)........... 15

Electrical Workers v. Hechler, 481 U.S. 851 (1987)..... 14

John Deklewa & Sons, 282 NLRB 184 (1987),

enforced, 843 F.2d 770 (3d Cir.), cert. denied, 488

SAA GRD a6 asec whe 6-4 cbs waveueer dea wN ee as 8

Lingle v. Norge Division of Magic Chef, Inc., 486 U.S.

dy ERA eRe eR 4,11, 15

Machinists v. Wisconsin Emp. Rel. Comm’n., 427 U.S.

STs sence da eed en oe ce ake Wale sine ¢o ws 4 9

Richardson v. Communications Workers of America,

ow Bg | re a 5

Rozay’s Transfer v. Local Freight Drivers, 850 F.2d

1321 (9th Cir. 1988), cert. denied, 409 U.S. 1030

RE Mer Stoner ens Rea SOR t cathe Oia eae 7

San Diego Building and Trades Council v. Garmon,

Se SO ee SE eek Gib ow ee hUMOU SLANE debeaxees 5

Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962)...... 12

TABLE OF AUTHORITIES —- Continued

UAW v. Federal Forge, Inc., 583 F. Supp. 1350 (WLD.

ae) Sree

United Steelworkers of America v. Rawson,

» 36 L.W. 6556 (1990)........

STATUTES

bk ae 2 ee errr errr ee Terr rere

Labor Management Relations Act § 301....

National Labor Relations Act

OTHER AUTHORITIES

BNA Daily Labor Report (March 5, 1987)...

U.S.

passim

. 10

No. 91-4

€

In The

Supreme Court of the United States

October Term, 1991

.

INTERNATIONAL UNION OF OPERATING

ENGINEERS LOCAL NO. 12, AFL-CIO,

Petitioner,

CARROLL WILSON, et al.,

Respondents.

o¢—--——-- —

Petition For A Writ Of Certiorari

To The United States Court Of

Appeals For The Ninth Circuit

*

OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

> -

OPINIONS BELOW

The opinion of the Court of Appeais is reported at

915 F.2d 535 and is reprinted in the separately bound

Petitioner’s Appendix (hereafter PA) at pp. la-16a. The

District Court entered findings of fact and conclusions of

law, which are reproduced in Petitioner’s Appendix.

a * ee

JURISDICTION

Respondents agree with Petitioner’s statement of the

jurisdictional provisions. Respondents disagree that this

l

Court should exercise its discretion to grant certiorari in

this unique, fact-specific case.

— 4

STATUTORY PROVISIONS INVOLVED

Respondents agree that the statutes cited by Peti-

tioner are raised in its Petition.

o

STATEMENT OF THE CASE

The respondents are Carroll Wilson and his wife

Patricia Wilson, who at the time of the events in question

were the sole partners in a small grading business,

Wilson Equipment (later incorporated as C. E. Wilson

Corp.). (“Wilsons” shall refer to both Mr. and Mrs. Wilson

as well as their partnership).

After a career in the Navy, Mr. Wilson retired and

went into the grading business. The Wilsons slowly built

up a small business, with Mr. Wilson running equipment

and supervising the jobsite work and Mrs. Wilson han-

dling the office and paperwork. In 1982 they employed :

two or three operators, none of whom were Union mem-

bers. They had no agreement with any union.

This case arose on May 14, 1982 when the Petitioner’s

(the “Union” shall refer to Petitioner Local 12) Business

Agent lied to Wilson in order to induce him to sign a

piece of paper called an “Owner-Operator Agreement.”

The Wilsons were grading the site for a gymnasium, and

they needed extra dirt. Mr. Wilson found excess dirt at a

nearby job site being run by a general contractor called

errr

Lyle Parks (the “General”). He cut a deal with the job

superintendent for the General to haul away the dirt for

free. This arrangement benefitted them both.

The General was not a signatory to any agreement

with the Union, and did not require its subcontractors to

Operate under any union agreement. The Union’s Busi-

ness Agent knew this.

Nonetheless, the Business Agent approached Wilson

and told Wilson that he could not work on the site.

Wilson explained that he had the General's permission to

remove the dirt. The Business Agent told Wilson that the

General had said that Wilson must be “union” to work on

the job, and that Wilson must sign an “Owner-Operator”

form to run his own equipment on the job. There was no

discussion about other jobs; there was no discussion

about employees or terms and conditions of work. At this

point, the Business Agent's first lie, the one at issue, was

complete. He had lied to Wilson about the General's

alleged statement that Wilson had to sign the Owner-

Operator form.' The Business Agent admitted on cross-

examination that he knew the Genera! was not a union

signatory, and did not require its subcontractors to be

union.

Several expensive rented dump trucks were waiting

to be loaded. Wilson was in a hurry. Wilson signed the

Owner-Operator form on the hood of the automobile

' The Business Agent then lied to Wilson about the effect

of signing the form. This is the lie about whether the form

would affect Wilson’s status, the lie which the District Court

concluded required interpretation of the form and therefore

was governed by § 301. The second lie is not at issue.

all wry? ty” i 7, . - = FF . - - , .

beside them, relying on the Business Agent’s representa-

tion that it was required. The entire dialogue took only a

few minutes. Unbeknownst to the Wilsons, the Owner-

Operator form purported to bind them to a Master Labor

Agreement requiring payments to various Union trust

funds.

In 1984, the trust funds filed suit against the Wilsons

under § 301 for “breach” of the Owner-Operator form for

failure to make contribution payments. The Wilsons

cross-complained against the Union, alleging fraud.

The jury returned a verdict for the Wilsons against

both the trust funds and against the Union. The jury

found that there was no contract. The jury found that the

Business Agent defrauded Wilson by lying about the

need to sign the form to work on that job, and awarded

the Wilsons $200,000.00 in damages for lost time and

emotional distress. The jury also found that the Business

Agent defrauded Wilson by lying about whether the

agreement would change his status.

The Union appealed, claiming that the state law

claim based on the lie about the Owner-Operator form

being required for that job was preempted by § 301. The

Ninth Circuit ruled, in a straightforward application of

this Court's precedent, that the state law claim was not

preempted because it did not require interpretation of the

owner-operator form. (PA 9a-10a, quoting Lingle v. Norge

Division of Magic Chef, Inc., 486 U.S. 399 (1988).)

+

ails = = . 4 =_ =_ - = ai ~~ -~- eS a ae,

ARGUMENT: THERE IS NO REASON

TO GRANT CERTIORARI

The Union urges certiorari based upon a supposed

split in the circuits, Garmon preemption, and the argu-

ment that the Circuit Court was wrong. None of these

rationales is convincing.

The supposed “split” is not only mythic, it has noth-

ing to do with this case, and has never been briefed or

addressed by the parties or the courts below.

Preemption by the National Labor Relations Act

under San Diego Building and Trades Council v. Garmon, 359

U.S. 236 (1959), is not a possibility in this case because the

Union was not the certified collective bargaining repre-

sentative of the two or three operators the Wilsons

employed.

The Ninth Circuit’s decision on § 301 is in full accord

with this Court’s development of the law. Regardless, the

outcome of the case would be the same because the

Wilsons prevailed on their § 301 fraud claim as well as

their state law claim, and any realistic view of § 301

would include damages for lost time and emotional dis-

tress.?

Finally, this is not a case of national importance or

widespread application. It turns on its unique facts: an

out-and-out lie perpetrated by one stranger on another,

2 See, Richardson v. Communications Workers of America, 443

F.2d 974 (8th Cir. 1971); De Arroyo v. Sindicato de Trabajadovres

Packing, 425 F.2d 281 (1st Cir. 1970); UAW v. Federal Forge, Inc.,

583 F. Supp. 1350 (W.D. Mich. 1984).

- -..

completely outside the context of any collective bargain-

ing relationship. Unlike the cases relied upon by the

Union, this is a situation where one party had not a clue

that any kind of agreement purporting to regulate work-

ing conditions of employees was being proposed.

1. THE SUPPOSED “SPLIT” IN THE CIRCUITS HAS

NOTHING TO DO WITH THE RELEVANT ISSUE

IN THIS CASE.

The “split” in the circuits which the Union identifies

does not deal with the relevant issue in this case -

whether § 301 preempts a pendent state law claim for

garden variety fraud merely because the liar happens to

be a union business agent.

Not a single one of the cases cited by the Union in

support of the “split” deals at all with § 301 preemption

of state law claims. Rather, the cases discuss whether

§ 301 confers subject matter jurisdiction to examine the

validity or existence of a collective bargaining agreement.

No party contested that issue in our case. All parties, the

Wilsons, the Union, and the trust funds, assumed that

§ 301 provides subject matter jurisdiction to decide the

validity or existence of a collective bargaining agree-

ment.? The issue was never briefed at the District or

Circuit Court level.

Thus, since all parties are in agreement on the issue

on which the Circuits are supposedly “split,” this case is

3 The Wilsons had a § 301 fraud claim based on the Busi-

ness Agent’s second lie, as well as the pendent state law fraud

claim under discussion.

not an appropriate vehicle for review of that issue. The

“split” of which the Union complains, if it really exists,

should be resolved in a case where the lower courts

squarely faced the issue with the benefit of briefing and

argument by the parties.

There is even a question as to whether the “split”

really exists, for the reason explained by the Solicitor

General in his amicus brief opposing certiorari in Rozay’s

Transfer v. Local Freight Drivers, 850 F.2d 1321 (9th Cir.

1988), cert. denied, 409 L'S. 1030 (1989) (Rozay’s II), that

the courts of appeals are moving toward a consensus that

§ 301 confers jurisdiction to adjudicate claims that collec-

tive bargaining agreements are invalid.4

There is no split in the circuits on the relevant issue:

whether § 301 preempts a pendent state law claim for

fraud arising completely outside the context of collective

bargaining.

4 The Union's suggestion that the Solicitor General would

plead for the application of § 301 to this case is unjustified.

There are significant and decisive factual differences between

our case and Rozay’s II, the most important of which is that

Rozay’s II arose in the context of an established collective

bargaining agreement and relationship. The Solicitor General

did not have the facts of this case before him. The relevant

point is that the Solicitor General correctly viewed the Circuit

Courts as moving toward an accord on the issue of subject

matter jurisdiction, which is not an issue raised by the instant

case.

2. GARMON PREEMPTION: THE RELATIONSHIP

BETWEEN BAD FAITH BARGAINING UNDER

THE NATIONAL LABOR RELATIONS ACT AND

SECTION 301 OF THE LABOR MANAGEMENT

RELATIONS ACT IS NOT PROPERLY A SUBJECT

OF THIS CASE.

Section 8 of the National Labor Relations Act is typ-

ically the exclusive remedy for bad faith bargaining. The

predicate to the application of Section 8 is the existence of

a legally-required duty to bargain in good faith. 29 U.S.C.

§ 158. As the Ninth Circuit noted below, that issue does

not arise here because there was no legal obligation to

bargain (PA 10a-12a). A union cannot compel an

employer to bargain with respect to employees the union

does not represent. Here, the Union did not represent the

Wilsons’ employees.

Further, even if the Owner-Operator form is charac-

terized as a pre-hire contract,> a creature unique to the

construction industry, the NLRB and courts are clear that

there is no duty to bargain over pre-hire contracts. In

other words, federal law has no interest in compelling

bargaining for such a contract, nor in regulating the terms

of such bargaining. The only obligation relating to a pre-

hire contract is to follow its terms for its duration. There

is not even an obligation to negotiate for a successor

agreement. John Deklewa & Sons, 282 NLRB 184 (1987),

enforced, 843 F.2d 770 (3d Cir.), cert. denied, 488 U.S. 889

5 Even that characterization would be a shock to Wilson -

all he knew was what the Business Agent told him - that the

General required him to sign a form in order to run his

machine on that job.

(1988). Where is the basis for preemption if the parties do

not even have to talk about such a contract?

Most importantly, perhaps, the Union’s high-flown

characterizations of the Owner-Operator form as a “pre-

hire contract” and the brief conversation between Wilson

and the Union Business Agent as “bargaining” are both

incorrect on the specific facts of this case. (See Ninth

Circuit opinion, PA 11a-12a.)

The cases cited by the Union, Parker, Serrano, and

Kolentus, have no application to our situation. All concern

established, long-standing collective bargaining relation-

ships between a union and employer. The obligation to

bargain in good faith under Section 8(a) of the NLRA -vas

clear. Each of those cases dealt with state law fraud

claims claiming, essentially, that an employer had com-

mitted fraud in obtaining concessions in a collective bar-

gaining agreement by representing that it would keep a

plant open. None of those cases deal with the construc-

tion industry or pre-hire contracts. All deal with the

obligation to bargain in good faith that exists between an

employer and a union as the duly certified collective

representative of a group of employees who have voted

for such representation.®

6 Machinists v. Wisconsin Emp. Rel. Comm’n., 427 U.S. 132

(1976), a Garmon preemption case cited by the Union in a

footnote, is even farther removed from the facts of this case.

There, the State of Wisconsin ordered a union to cease and

desist from a partial strike. Machinists merely recognizes that a

union has a right to strike for better wages and working

conditions, as part of its right to use “economic weapons”

when bargaining on behalf of its members for a successor

collective bargaining agreement.

10

The Union’s unsupported claim that the large

number of multi-state agreements requires some vague

decisional uniformity is disproved by none other than

Robert Georgine, President of the AFL-CIO Building and

Construction Trades Department, in his testimony to

Congress regarding a recent unsuccessful effort to amend

the LMRA to prohibit double-breasting (simultaneous

ownership and operation of union and non-union con-

struction companies). Georgine testified that in the con-

struction industry:

[Nlational agreements represented only a minuscule

percentage of collective bargaining agreements ...a

total of approximately 9,500 local agreements

and only 185 national or multistate agreements,

the latter representing under two percent of the

total number of agreements. And even that per-

centage is artificially inflated, as dozens (or

even hundreds) of individual employers may

sign or assent to a single collective bargaining

agreement between a local union and a multi-

employer association.

BNA Daily Labor Report (March 5, 1987). Thus, even

accepting the questionable thesis that application of a

universally-accepted doctrine such as fraud creates a pos-

sibility of varying standards from state to state, the prob-

lem is not of national importance.”

? The Union also suggests that the identical conduct was

subjected to varying standards under fedcral versus state law

in this case. Not true. The Business Agent told two different

lies. The District Court applied its understanding of federal law

to one, state law to the other. Since there are no specific

statutory guidelines defining fraud in the LMRA, a court must

(Continued on following page)

11

3. THE DECISION BELOW IS CORRECT: UNDER

THIS COURT’S DEVELOPMENT OF SECTION 301,

A STATE LAW FRAUD CLAIM ARISING COM-

PLETELY OUTSIDE ANY COLLECTIVE BARGAIN-

ING RELATIONSHIP AND NOT BASED IN ANY

WAY ON THE CONTENT OF THE ALLEGED COL-

LECTIVE AGREEMENT IS NOT PREEMPTED

MERELY BECAUSE THE TORTFEASOR IS

EMPLOYED BY A LABOR UNION.

The decision below is nothing more than a straight-

forward application of the test for § 301 preemption

repeatedly endorsed by this Court: when “the state law

claim can be resolved without interpreting the agreement

itself,” there is no preemption. Lingle v. Norge Division of

Magic Chef, Inc., 486 U.S. 399, 421 (1988) (“Lingle”).

In Lingle, the Court reversed the Seventh Circuit's

conclusion that a state law claim alleging retaliatory dis-

charge for filing a worker’s compensation claim was pre-

empted because it was “inextricably intertwined” with a

collective bargaining provision prohibiting discharge

without just cause. The Supreme Court specifically

rejected the Seventh Circuit’s analysis that the state law

claim was pre-empted because it “implicates the same

analysis of facts as would an inquiry under the just cause

provisions.’ The Court ruled:

(Continued from previous page)

look to relevant state law. See, DelCostello v. International Broth-

erhood of Teamsters, 462 U.S. 151 (1983). California law permits

recovery for negligent misrepresentation and therefore that

theory should have applied to the § 301 claim as well as the

state law claim - a point which Respondents argued below but

obviously had no reason to appeal.

12

[E]ven if dispute resolution pursuant to a

collective-bargaining agreement, on the one

hand, and state law, on the other, would require

addressing precisely the same set of facts, as

long as the state law claim can be resolved without

interpreting the agreement itself, the claim is “inde-

pendent” of the agreement for § 301 pre-emption

purposes. [Emphasis added.] Id.

This conclusion is nothing new, as the Court's cita-

tion of Caterpiller, Inc. v. Williams, 482 U.S. 386, 107 S.Ct.

2425 (1987); Allis-Chalmers v. Lueck, 471 U.S. 202 (1985);

and Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962) shows.

The Union’s sweeping assertion that matters relating

to “contract formation” are within the ambit of § 301 and

therefore automatically pre-empted is no different than

the Seventh Circuit’s mistaken conclusion that § 301 pre-

empts merely because the same general set of facts is

implicated by a state law claim as would be implicated by

a § 301 claim. The Union argues that simply because the

Business Agent is employed by a union and his lies

occurred within a few minutes of each other, § 301 must

control. Lingle holds that such an analysis begs the ques-

tion. The inquiry is whether the claim requires interpreta-

tion of a collective bargaining agreement. The conclusion

that the Business Agent lied when he told Wilson the

General required him to sign an Owner-Operator form

requires no such analysis.

The Union’s characterization of the issue as one of

“contract formation” is not only irrelevant, it is mistaken.

The Union ignores the central conclusion in this case,

reached by the jury upon three weeks of evidence: Wilson

had no idea that the document the Business Agent tricked

13

him into signing had anything to do with collective bar-

gaining. There was no haggling over terms, no give and

take. There was a brief exchange premised upon what the

jury found to be an outright lie: the false statement that

the General required Wilson to sign an Owner-Operator

form in order to take the dirt on that job.

Application of § 301 to such facts would miss the

point of preemption. The salient passage from Lucas Flour

is the one that explains the reason for preemption: the

need for “individual contract terms” to have a uniform

meaning so that parties who are negotiating and adminis-

tering collective agreements have a clear and consistent

understanding of the private labor law they are creating.

The ordering and adjusting of competing inter-

ests through a process of free and voluntary

collective bargaining is the keystone of the fed-

eral system to promote industrial peace. State

law which frustrates the efforts of Congress to

stimulate the smooth functioning of that process

thus strikes at the very core of federal labor

policy.

Teamsters v. Lucas Flour Co., 369 U.S. 95, at 103-104.

It is evident from the Court’s consistent use of words

such as “free,” “voluntary,” and “consensual,” that the

Court is speaking to situations where two parties know-

ingly sit down at the bargaining table. The intercourse

between Wilson and the Business Agent was not the

mutual, knowing negotiation of a collective agreement

envisioned by Congress and discussed in Lucas Flour.

United Steelworkers of America v. Rawson, __ U.S. _,

58 L.W. 4556 (1990) is not to the contrary. Like all of the

14

cases the Union cites, it arose squarely in the context of

an established collective bargaining relationship. The

Court’s statement of the issue at stake is instructive:

We granted certiorari in this case because [it]

.. . raised important questions about the opera-

tion of federal and state law in defining the duties

of a labor union acting as a collective bargaining

agent. (Emphasis added.)

58 L.W. at 4557. The lawsuit, filed by the estates of several

empioyees killed in a mine explosion, was based on the

claim that the union had, through a collective bargaining

agreement with the employer, established a joint manage-

ment labor safety committee, and that the union, through

its representatives on the committee, had negligently

inspected the mine.®

The Rawson result rests upon the fact that a union

performing its obligations to the employees it repre-

sented under the terms of a collective bargaining agree-

ment it negotiated undertook to inspect a mine and then

did a poor job of it. The Court took pains to note that

“[t]his is not a situation where the Union’s delegates are

8 The result in Rawson is merely a straightforward applica-

tion of Electrical Workers v. Hechler, 481 U.S. 851 (1987), which

holds that an employee's state law tort suit against her union

for breach of the union’s duty of care was governed by federal

law where the duty allegedly arose from the collective bargain-

ing agreement between union and employer. The Rawson deci-

sion is premised on the conclusion that the plaintiffs were

asserting exactly the same type of claim as in Hechler: “The

only possible interpretation of these pleadings, we believe, is

that the duty on which respondents relied as the basis of their

tort suit was one allegedly assumed by the Union in the

collective bargaining agreement.” Rawson, 58 U.S.L.W. at 4558.

15

accused of acting in a way that might violate the duty of

reasonable care owed to every person in society.” 58

U.S.L.W. at 4558.

Compare that to our case. Our case is premised on

exactly the kind of general duty, owed by all persons to

other persons, that Rawson was not. As an example, if the

superintendent of the Generai had falsely told Wilson

that he was required to sign an Owner-Operator form to

work on the site, the Wilsons would have sued him under

exactly the same theory. The Wilsons’ suit for fraud in the

inducement does not draw its shape from the fact that a

union business agent lied about the necessity for what the

Union characterizes as a pre-hire contract. The suit draws

its essence from the fact that a person (not necessarily a

union agent) lied to Wilson about the need to sign a piece

of paper (it could have been any piece of paper - a

waiver, a permit, and so on, the list is endless.)?

The Ninth Circuit correctly applied § 301 law to this

case. Recognizing that “there is nothing novel about rec-

ognizing that substantive rights in the labor relations

context can exist without interpreting collective bar-

gaining agreements” (Lingle, 486 U.S. at 411), the Court

found that interpretation of the alleged agreement was

9 The Union also cites Dowd Box v. Courtney, 368 U.S. 502

(1962), but it does not speak to our situation either: “The sole

questicn presented by this case is whether [§ 301] operates to

divest a state court of jurisdiction over a suit for violation of a

contract between an employer and a labor organization.” 368

U.S. at 503. (The answer, by the way, is no.) There was no state

law claim in the case; it did not present the Court an oppor-

tunity to rule on the test for § 301 preemption of state law

rules.

16

not required to resolve the Wilsons’ fraud claim. That

finding is completely consistent with this Court’s deci-

sions, and the unique facts of this case.

¢

CONCLUSION

As explained, there is no reason to grant certiorari in

this case. The petition for a writ of certiorari should be

denied.

Dated: July 30, 1991

Respectfully submitted,

RicHARD M. FREEMAN

(Counsel of Record)

501 West Broadway, 19th Floor

San Diego, CA 92101

(619) 338-6500

Counsel for Respondent