Opposition Brief — Penman v. International Alliance of Theatrical Stage Employees, Local 818

No, 87-794

rt, U.S»

} Supreme ay D

In the ofc «8 BH

SUPREME COURT QOSEPH.E, SPAMON IS

of the United Stat

OCTOBER TERM, 1987

CHARLES PENMAN,

Petitioner,

VS.

PUBLICISTS GUILD, LOCAL 818, INTERNATIONAL

ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND

MOVING PICTURE MACHINE OPERATORS OF THE

UNITED STATES AND CANADA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA,

SECOND APPELLATE DISTRICT,

DIVISION THREE

RESPONDENT’S BRIEF IN OPPOSITION

LEO GEFFNER

TAYLOR, ROTH,

BUSH & GEFFNER

3055 Wilshire Boulevard

Suite 900

Los Angeles, CA 90010

(213) 487-1520

Counsel for Respondent

TERRI TUCKER

6363 Wilshire Boulevard

Suite 228

Los Angeles, CA 90048

(213) 653-9555

Appellate Counsel

TOPICAL INDEX

Page

my 8 Be me Sigy 8 i ey | | Renee iii

EE sateen cdibbtallicdaataig vai ddiaasécaneentcteccvcedeesssaceses 1

COUNTERSTATEMENT OF FACTS .................. 2

COUNTERSTATEMENT OF THE CASE ......... J

SUMMARY OF ARGUMENT. ..........cccccecessesseeees 7

PEE sceieeieetlen sdatalicdtabiin i tindibesisssseenanicsensesins 11

I. THE COURT OF APPEAL’S

DISCUSSION OF SUBSTANTIVE

ARBITRABILITY IS IRRELEVANT

TO THE VALIDITY OF ITS

ETE certbilciclaseissnbasndeeasavesccccscececescssees 11

II. THE COURT OF APPEAL

PROPERLY APPLIED THE

GOVERNING STANDARD FOR

BREACH OF THE DUTY OF FAIR

REPRESENTATION CLAIMS ...........000 13

A. The Union’s Duty of Fair Representa-

tion Was Deactivated By Attorney

Lowe’s Representation Of Penman. .......... 13

B. Federal Law Does Not Impose Liabili-

ty For Errors Of Judgment. ..................0000 15

C. This Case Does Not Fit Within The

Narrow Exception Articulated In

p_REES AE SSSE Ge P 18

D. Penman’s “Evidence” Of Intentional

Union Misconduct Does Not Affect

The Correctness Of The Court Of

POE 6 TIO. sicncscrnisccsiciseressnrassessesescece 22

poe ers

Ill. THE COURT OF APPEAL ACTED

CONSISTENTLY WITH FEDERAL

LAW WHEN IT AFFIRMED

SUMMARY JUDGMENT ON THE

ISSUE OF EQUITABLE ESTOPPEL. ..... 25

CONG csssssscsvimemniiicariseunaieaadauaae 27

—iii—

TABLE OF AUTHORITIES

Page

Cases

Federal Cases:

Acri v. International Association of

Machinists and Aerospace Workers,

tan Piee ioee (oem Cie. 1986) .................... 25

Allis-Chalmers Corporation v. Lueck,

471 US. —, 105 §.Ct. 1904 (1985) .......... 11

Castelli v. Douglas Aircraft Company,

Fae Wee Be CU GE, TFBS) occccccccrcccscceese 19

Dutrisac v. Caterpillar Tractor Company,

749 F.2d 1270 (9th Cir. 1983) . 9, 13, 18, 21

Eichelberger v. NLRB,

765 F.2d 851 (9th Cir. 1985) ........ 14, 18, 22

Ford Motor Co. v. Huffman,

aes wae ae, fe wt. 681 (1953) .............. 14

Hines v. Anchor Motor Freight,

424 US. 554, 95 S.Ct. 1048, 47

I I MITT | sscentcassesorsccasereneseransessensess 20

Peterson v. Kennedy,

771 F.2d 1244 (9th Cir. 1985), cert.

GOR. ca) San, 106 $.Ct. 1642, 90

ROE WEE EE PIED: sxcpnsntencdnasecccncersanecacee passim

Republic Steel Corporation v. Maddox,

379 U.S. 650, 85 S.Ct. 614 (1985) ....... 11, 12

Robesky v. Quantas Empire Airline, Ltd.,

573 F.2d 1082 (9th Cir. 1982) ...... 19, 20, 21

ae

San Francisco Web Pressmen & Platemakers

No. 4 v. NLRB,

794 F.2d 420 (9th Cir. 1986) ...........ccceeees 12

Scott v. Machinists Automotive Trades

District, 815 F.2d 1281 :

CF IU seilaeacabocsshiconinanntsapeantanas se ee ae

Steele v. Louisville and Nashville Railroad

Co., 323 US. 1592,

Oe Se Se CITED crncsticnnnnnvessennnvarncnannsmnnenons 14

Vaca v. Sipes,

386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d

RD ETE bvdccnctecnsnsssstsnsiencessanstpanennnen 12, 14, 22

State Cases:

Brewer v. Simpson,

53 Cal.2d 567, 2 Cal.Rptr. 609 (1980) ..... 23

Denham v. Superior Court, ee

2 Cal.3d 557, 86 Cal.Rptr. 65 (1970) ........ 23

Kompf v. Morrison,

73 Cal.App.2d 284,

CG Fe Be ERIE) ecctrsccncqercascssecnensscsonsnnesae 23

Walling v. Kimball,

17 Cal.2d 364, 110 P.2d 58 (1941) ............ 23

Statutes

California Code of Civil Procedure

© BOING) scisisccsiensnsibsssiiniandbdtetinnniienasenntchsasensis 10, 22

California Evidence Code

© BD cnestissiscesincceconesesinenccntandinsinannaakeninis 10, 22

In the

Supreme Court

of the United States

OCTOBER TERM, 1987

CHARLES PENMAN,

Petitioner,

vs.

PUBLICISTS GUILD, LOCAL 818, INTERNATIONAL

ALLIANCE OF THEATRICAL STAGE EMPLOYEES

AND MOVING PICTURE MACHINE OPERATORS

OF THE UNITED STATES AND CANADA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA, SECOND APPELLATE DISTRICT,

DIVISION THREE

RESPONDENT’S BRIEF IN OPPOSITION

PARTIES

Petitioner has named Respondent in such a way as to

suggest that both the International Alliance of

Theatrical Stage Employees and Moving Picture

Machine Operators of the United States and Canada

(“IATSE”’) and its affiliate local, Publicists Guild,

Local 818 are parties hereto. The International has

never been a party to this lawsuit, and the Respondent

is more properly referred to by the name shown on the

caption of this Brief in Opposition to Petition for

Certiorari.

COUNTERSTATEMENT OF FACTS

The undisputed record in this case shows the

following. Petitioner Charles Penman (“‘Petitioner” or

“Penman”) was employed by Warner Brothers, Inc.

(‘““WBI’’) from 1973 until August 31, 1979, when his

employment with WBI was terminated. From

August 1, 1978 until August 31, 1979, Penman worked

asa Junior Publicist in WBI’s Publicity Department.

At all times during his tenure as a Junior Publicist, the

terms and conditions of Penman’s employment were

governed by a Collective Bargaining Agreement

betwen WBI and Publicists Guild, Local 818 (“‘the

Union”). Until August 1, 1979, the applicable Agree-

ment was the 1976-79 contract; on August 1, 1979, a

successor Agreement, executed in December 1979 and

retroactively effective, became the governing docu-

ment.

In both the 1976 and 1979 contracts between WBI

and the Union, Article 7 contained a formal and

binding grievance and arbitration procedure for

resolving “‘any dispute between the Local Union or any

of the persons subject to [the] Agreement and the

Producer with regard to wage scales, hours of

employment or working conditions or with regard to

the interpretation of this Agreement concerning such

provisions.” Although the 1976 Agreement contained

specific language protecting employees on _ the

“Industry Roster” from discharge without cause, both

contracts contained references to “discharge for cause”

outside of the Industry Roster provisions.

Following his termination, Penman retained the

services of a private attorney, Clarence Lowe, to

represent him with respect to his termination. Penman

asked the Union for permission to have Lowe represent

him in connection with his discharge grievance and

arbitration. The Union agreed, but remained available

to assist Lowe when asked. At no time did the Union

ever refuse to take Petitioner’s grievance to arbitration.

On September 5, 1979, Penman, with the assistance

| of Lowe, filed a grievance against WBI with respect to

Penman’s termination. On September 6, 1979, the

; Union, through Business Agent Mac St. Johns, also

. filed a grievance against WBI on behalf of Petitioner.

The grievance filed by the Union requested that

Penman be reinstated to his position and that he be

paid back salary from the date of his termination to the

date of reinstatement.

The filing of the grievances by and on behalf of

Petitioner led to a “second step” grievance meeting on

October 11, 1979. Union Business Agent St. Johns

represented Appellant at this meeting. Despite St.

Johns’ efforts at this meeting, WBI refused to reinstate

Penman.

On October 12, 1979, the Union notified Penman’s

attorney, Lowe, of the results of the second step

grievance meeting. St. Johns also advised Lowe that if

he and Penman wanted to proceed to arbitration, the

Union would notify WBI and make the necessary

arrangements for the arbitration. "

On October 16, 1979, the Union notified WBI that

Penman’s grievance would be proceeding to arbitration

and that Penman would henceforth be represented by

Clarence Lowe. Following this letter, an arbitration

hearing was scheduled for November 8, 1979. On

October 16, 1979, however, Lowe wrote to St. Johns

and requested that the arbitration hearing be continued

because Lowe had a prior commitment. On

November 13, 1979, and again on February 28, 1980,

St. Johns wrote to Lowe and suggested several other

dates for the arbitration hearing. Lowe did not respond

to these letters, and as a result, the arbitration was

never rescheduled.

Lowe everitually decided that Penman’s grievance

was unmeritorious and that proceeding to arbitration

would be “futile”. Lowe therefore made a decision to

abandon the grievance. Lowe’s decision was based

upon his review of the contract, various arbitration

decisions which had been provided to him by the

Union, and tke merits of Petitioner’s case.

COUNTERSTATEMENT OF THE CASE

Penman began his case with a variety of claims

against WBI and the Union, including state law claims

for wrongful discharge, federal claims for racial

discrimination and breach of the duty of fair

representation, and later, for equitable estoppel. WBI

moved for summary adjudication of the issues, and the

Union moved for summary judgment, both on the basis

of the First Amended Complaint. Both were

successful.! (See Penman’s Petition for Writ of

Certiorari, hereinafter referred to as “Petition,”

Appendix B) As to WBI, the trial court concluded that

the 1979 collective bargaining agreement governed

Penman’s employment, and that because Penman had

' WBI went to trial on the remaining issues and successfully

brought a motion for nonsuit.

ee |

elected not to exhaust the grievance and arbitration

procedure provided in the contract, he could not state a

claim for wrongful discharge. As to the Union, the

court found that Penman’s attorney had made his own

decision not to pursue arbitration, and that his decision

was not the result of union conduct. Accordingly, the

court granted the Union’s motion for summary

judgment.” .

Penman appealed the trial court’s entry of summary

judgment in favor of the Union on the issues of breach

of the duty of fair representation, and equitable

estoppel. His fair representation argument, simply

stated, was that because his discharge was arbitrable

under the 1979 agreement, he was required to exhaust

contractual grievance procedures; that because the

Union representative gave “‘misleading” advice to his

attorney, he failed to exhaust those procedures; and

that the Union’s offer of bad advice was therefore a

breach of its duty of fair representation. Penman also

argued that because of the alleged misrepresentation,

the Union should be equitably estopped from contend-

2 For reasons unclear from the record, the trial court,

simultaneous with the summary judgment, granted Penman’s

motion for leave to file a second amended complaint against both

defendants. This potentially confusing action was clarified by an

almost immediate grant of a second summary judgment in favor of

the Union, based upon the second amended complaint. The second

amended complaint differed from the first in that it added a cause

of action for equitable estoppel against the Union. For present

purposes, the Union will treat the trial court’s action as a single

judgment based upon the totality of the allegations directed

against the Union in both the first and second amended

complaints.

ing that he was required to exhaust contractual

procedures.

The Court of Appeal rejected both arguments. It

wrote:

“At most, St. Johns was negligent. While St.

Johns did not have a copy of the final version

of the 1979-1982 agreement when he wrote

the December 18 letter to Lowe, he was an

experienced business agent and in fact, signed

the agreement on behalf of the Union.

However, as pointed out ante, had St. Johns

had a copy of the 1979-1982 agreement, he

may have been as confused as we were by its

provisions. He may have concluded the

“discharge for cause” language in Article 7

was inserted by mistake because it did not

relate to any other language in the 1979-1982

agreement and so informed Lowe. From this

record, there is no reason to believe St. Johns

would not have forwarded a copy to Lowe for

Lowe to scrutinize in a lawyer-like manner on

behalf of his client as soon as one was

available. While St. Johns’ interpretation was

misleading, there was no showing of

fraudulent concealment, or of unfair, dishon-

est or agregious conduct by him. Therefore,

there was no breach of duty of fair

representation.

Further, these facts do not support any

recovery by Penman against the Union

pursuant to the doctrine of equitable estoppel.

Even if we were to conclude such an

alternative theory were available to Penman

pursuant to Hass v. Darigold Dairy Products

Co. (9th Cir. 1985) 751 F.2d 1096, 1099-1100,

the elements thereof do not exist on this

record....

Penman had no case in the beginning, and it

did not get any stronger as it progressed.”

(Petition, pp. A-16 — A-17) (emphasis in original)

The Court of Appeals’ decision also contained dicta

concluding that the applicable collective bargaining

agreement did not protect Penman from at will

discharge. (Petition, p. A-10) Because Penman evident-

ly believes that such a conclusion would have

supported a reversal of the trial court’s dismissal of the

state law wrongful discharge claims due to federal

preemption, and because Penman did not appeal that

issue, he is understandably frustrated. This frustration

evidently led to his petition for review before the

California Supreme Court. The Court, en banc,

summarily denied review. Penman now seeks review

before this Court based upon the same allegations of

error.

SUMMARY OF ARGUMENT

None of the traditional reasons for granting

certiorari are present in this case. The California Court

of Appeal has applied well settled federal precedent to

an undistinguished set of facts. There is no conflict

between the decisions of state and federal courts, nor

between circuit courts. There is nothing here but

obedient and predictable fidelity to the principles and

precedents of federal labor law.

Nonetheless, Petitioner has attempted to recast his

arguments as questions of importance to this Court.

His first argument is that the Court of Appeal has

denigrated the federal labor policy in favor of

arbitration by holding that Penman had no substantive

right to arbitration. What Penman fails to note,

however, is that the question of whether or not his

discharge was arbitrable goes primarily to the issue of

whether or not federal law required him to exhaust the

grievance and arbitration procedure provided by the

collective bargaining agreement as a prerequisite to

suit against the employer.

Thus while it is true that the trial court found that

exhaustion was required, it did so in connection with

Penman’s claims against his employer, WBI. WBI was

not a party to the appeal, and neither the trial court’s

decision on WBI’s motion for summary adjudication,

nor the Court of Appeal’s comments about that portion

of the lower court’s minute order are appropriate

issues for review.

The Court of Appeal affirmed a summary judgment

in favor of the Union on the issues of breach of the

duty of fair representation, and equitable estoppel. On

the breach of duty of fair representation issue, the

Court affirmed on the basis c* a specific finding that,

under the governing standard, the Union’s conduct did

not constitute a breach. This conclusion was indepen-

dent of any opinion as to the potential for success in

arbitration on the merits of the grievance. The Court’s

decision was limited to a straightforward application of

clear federal precedent; its discussion of the arbitrabili-

ty of Petitioner’s grievance was unnecessary to its

decision and does not present an issue for review by

this Court.

In a further attempt to create an issue for review,

Penman suggests that the Court of Appeal applied the

standard used by the Seventh Circuit in judging union

conduct when the preferred standard is that employed

: by the Ninth Circuit. Had the Court of Appeals applied

7 the rule of Dutrisac v. Caterpillar Tractor Co., 749 F.2d

1270 (9th Cir. 1983), Penman argues, “the result would

clearly have been in favor of Petitioner.” (Petition,

p. 23) Petitioner is confused.

First, it is evident from the Court of Appeal’s

opinion that the decision is based upon Ninth, rather

than Seventh Circuit caselaw. (Petition, p. A-13 — A-

16) Second, Petitioner misreads Dutrisac. That case

imposes liability upon unions for unexplained failures

to perform ministerial acts such as meeting deadlines

for the filing of grievances. 749 F.2d at 1274. It

specifically shields unions from liability for errors of

judgment. Id. at 1273. Here it is undisputed that the

union facilitated arbitration for Penman, but that

Penman’s attorney chose not to proceed. The only

“misconduct” alleged is the union’s arguably mistaken

interpretation of the contract. Because contract

interpretation is an exercise of judgment, Dutrisac does

not apply. See Peterson v. Kennedy, 771 F.2d 1244 (9th

Cir. 1985), cert. den., _-U.S___.,, 106 S.Ct. 1642, 90

L.Ed. 2d 187 (1986).

Penman also continues to dispute evidentiary issues.

Throughout this litigation, he has regarded the Union’s

arguably confusing interpretation of the contract

communicated to Lowe as violative of the Union’s duty

_—

of fair representation. The caselaw, however, does not

support Petitioner’s belief. See, e.g., Peterson, supra.

Similarly, Penman has consistently viewed an

employer memo containing unsubstantiated statements

regarding the Union “going through the motions” as

solid evidence of a “diabolical conspiracy” to foil

Penman’s efforts in arbitration. If, as Penman charges,

the lower courts ignored the memo in deciding the

case, such exclusion from consideration was an

appropriate response to hearsay. See California Code

of Civil Procedure § 437(d); California Evidence Code

§ 1200. Further, assuming that the Union representa-

tive was unenthusiastic about the merits of the

grievance, the undisputed record evidenced consistent

cooperation and assistance from the Union, and would

not support a finding of bad faith.

Penman’s last argument is that the Court of Appeal

failed to decide the question of whether or not Penman

was entitled to recover on a theory of equitable

estoppel. But the Court did decide this issue. It

concluded that the undisputed facts did not satisfy the

elements of the doctrine. Having reached that

conclusion, it was unnecessary to determine the

viability of the theory in the abstract. Again, there is no

basis for a grant of certiorari.

For all of these reasons then, Respondent Union

respectfully requests that the Court deny the Petition.

ne ial 0 mt i a

a

THE COURT OF APPEAL’S DISCUSSION OF

SUBSTANTIVE ARBITRABILITY IS IRRELE-

VENT TO THE VALIDITY OF ITS DECISION

Penman’s challenge to the Court of Appeal’s

conclusion that his grievance was not arbitrable is

,easily explained. Inherent in his argument is the

assumption that had the trial court reached the same

conclusion, he would have been able to maintain state

law wrongful discharge claims. While this may be true,

and it may be frustrating, it leads nowhere.

Penman did not appeal the trial court’s dismissal of

his tort claims. Instead, he accepted and conceded the

effect of federal preemption under Allis-Chalmers

Corporation v. Lueck, 471 U.S. ——, 105 S.Ct. 1904

(1985), and his failure to exhaust contractual remedies

as required by Republic Steel Corporation v. Maddox,

379 U.S. 650, 653, 85 S.Ct. 614 (1985). He appealed

only the judgment entered in favor of the Union, and

limited the issues to equitable estoppel and a breach of

the duty of fair representation theory based on the

Union’s alleged “‘derailment” of his grievance by what

he saw as intentional misrepresentation.

The question, then, is the significance of the Court

of Appeal’s observation that Penman did not have an

arbitrable grievance. The answer is that it is of no

significance. It is not necessary to the affirmance; it is,

in the Court of Appeal’s own words, “‘surplusage”’.

=

In discussing arbitrability in a wrongful discharge/

breach of duty of fair representation action, there are

two possible conclusions. If the grievance is arbitrable,

the grievant must exhaust contractual procedures prior

to bringing suit directly against the employer. Republic

Steel, supra. If it is not arbitrable, there is no exhaustion

requirement. In either case, the exhaustion analysis

goes to the question of whether or not the employee

may sue the employer directly, and does not aid a

decision as to a union’s culpability.

Penman nonetheless seeks to eradicate the Court of

Appeal’s discussion suggesting that exhaustion might

not have been required. His reasons are clear. If his

grievance was not arbitrable, the Union’s alleged

misconduct could not have resulted in harm, and even

a reversal of the Court’s holding on the liability issue

would not result in damages. See San Francisco Web

Pressmen & Platemakers No. 4 v. NLRB, 794 F.2d 420,

423-24 (9th Cir. 1986) (no back pay award where there

was no showing that the grievant would have prevailed

had the grievance gone to arbitration).

Moreover, if Penman did not have to exhaust his

contractual remedies, neither did he have to attempt to

establish a breach of the Union’s duty as an excuse for

his failure to do so. See generally, Vaca v. Sipes, 386

U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). For

Penman, the exasperating conclusion to be drawn from

the Court’s gratuitous discussion of arbitrability is that

he should have appealed the judgment entered in favor

of the employer, argued against coverage by the

collective bargaining agreement, and pursued the state

law wrongful discharge claims forfeited in this appeal.

tus

Penman chose the opposite path, and it is not for this

Court to indulge Petitioner’s revisory desires.

II

THE COURT OF APPEAL PROPERLY AP-

PLIED THE GOVERNING STANDARD FOR

BREACH OF THE DUTY OF FAIR REPRE-

SENTATION CLAIMS

Although Petitioner has tried to manufacture a

circuit split in an effort to state a basis for certiorari, no

such conflict exists. The Court of Appeal did not, as

Penman seems to believe, apply the Seventh Circuit’s

standard requiring a showing of intentional union

. misconduct. The Court relied upon decisions of this

Court, and of the Ninth Circuit. (See Petition,

Appendix A) Penman’s argument that reliance upon

Ninth Circuit precedent would have yielded a different

result is therefo~e somewhat mystifying. Nonetheless,

because Penman places his confidence in cases such as

Dutrisac v. Caterpillar Tractor Company, 749 F.2d 1270

(9th Cir. 1983), the Union will address the question of

the governing standard and its application to the facts

of this case. 7

A. The Union’s Duty of Fair Representation Was

Deactivated By Attorney Lowe’s Representa-

tion of Penman.

Although both the trial court and the Court of

Appeal concluded on the basis of undisputed facts that

the Union had not breached its duty of fair

representation, it is not entirely clear that the Union’s

f

oY we

duty of fair representation was triggered by the specific

facts of this case. The duty exists because of the

exclusive nature of a union’s representational role.

Steele v. Louisville and Nashville Railroad Co., 323 U:S.

192, 65 S.Ct. 226 (1944); Ford Motor Co. v. Huffman,

345 U.S. 330, 73 S.Ct. 681 (1953).

When a union is the unavoidable intermediary

between an employee and a remedy, the exclusiveness

of the union’s role generates a corresponding duty of

fairness. Thus, when the question is one of access to

contractual procedures available only to union repre-

sentatives, the duty comes into play. See generally,

Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d

842 (1967). But when the union does not have exclusive

access to a given procedure, and the represented

employees themselves have the right to seek relief, the

duty does not apply. See e.g., Eichelberger v. NLRB,

765 F.2d 851, 856-857 (9th Cir. 1985).

Here, at Penman’s request, the Union permitted a

private attorney to take over representation of Penman

in the handling of his grievance. As a legal matter,

then, because the Union in the specific circumstances

of this case was not to be the exclusive representative

of the employee, either in the grievance procedure or at

arbitration, there is no statutory or common law duty

on the part of the Union. This was, in essence, the

conclusion of the trial court when it found that the

decision of Penman’s counsel not to arbitrate was a

“conscious decision” based on the merits of the claim,

rather than a result of Union misrepresentation.

Likewise, the Court of Appeal found that “as an

afterthought, [Penman] sought to shift the blame to the

Union, and excuse his non-compliance with a

asst Ee

contention that the Union breached its duty of fair

representation to him.” The responsibility, the lower

courts concluded, lay with Petitioner.

B. Federal Law Does Not Impose Liability For

Errors Of Judgment.

Assuming, however, that the duty of fair representa-

tion was fully applicable, federal case law leaves no

question but that the Union did not breach it duty. The

essence of Penman’s Complaint against the Union is

that the Union allegedly gave incorrect information to

Penman’s attorney regarding the contents of the new

collective bargaining agreement retroactively applica-

ble to Penman’s discharge. Without discussing the

; details of the contract or the merits of Penman’s

grievance, we will assume for the purposes of argument

that the Union representative misinterpreted the terms

of the new contract.

The result is the same. The Court of Appeal relied

on valid, mainstream federal precedent to find that if

the Union had given the wrong information to

Penman’s counsel, it was at most the result of

negligence, and that mere negligence does not

constitute a breach of the duty of fair representation.

(See Petition, pp. A-12 — A-16)

The validity of the Court’s decision, and its

- consonance with the law of the Ninth Circuit as to the

applicable federal standard, is illustrated by several

Ninth Circuit decisions decided after those discussed

by the Court of Appeal. In Peterson v. Kennedy, 771

F.2d 1244 (9th Cir. 1985), cert. den. __-U. S__., 106

S.Ct. 1642, 90 L.Ed.2d 187 (1986), the Ninth Circuit

BEST AVAILABLE COP

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ee

reaffirmed its strongly held principle of deference to

union conduct. In that case, a football player went to

his union for advice concerning the filing of a

grievance to protest being cut from his team. The

player’s contract contained two separate grievance

procedures, one for injury grievances, and one for non-

injury grievances. An attorney for the union advised

the player that he should pursue the injury grievance.

In reliance upon the attorney’s advice, the player

relinguished the non-injury theory in favor of the

injury theory.

The advice was wrong. As things turned out, the

correct approach would have been to file a non-injury

grievance. When the mistake was discovered, it was too

late; although the union tried to “rechannel” the non-

injury grievance, it was dismissed as untimely. As a

result of the union’s error, the player lost all

opportunity to pursue a viable grievance.

The Court upheld the judgment entered in favor of

the union. After reviewing the development of the duty

of fair representation standard in the Ninth Circuit, the

Court discussed the policy supporting the generous

measure of deference granted to unions:

“Sound policy reasons militate against impos-

ing liability on unions for errors in judgment

made while representing their members in the

collective bargaining process. ... [H]olding

unions liable for such errors would serve

ultimately to ‘defeat the employees’ collective

bargaining interest in having a strong and

effective union.’ If unions were subject to

liability for ‘judgment calls’, it would neces-

sarily undermine their discretion to act on

ee a

a,

behalf of their members and ultimately

weaken their effectiveness. ... Such a result

would be inconsistent with our oft-repeated

commitment to construe narrowly the scope

of the duty of fair representation in order to

preserve the unions’ discretion to decide how

best to balance the collective and individual

interests that they represent.”

771 F.2d at 1255. There is therefore no longer any

question but that a union’s good-faith efforts to fairly

represent its members — even if negligent, and even if

they involve poor judgment — cannot result in liability.

Additional support for the same proposition is found

in the recent case of Scott v. Machinists Automotive

Trades District, 815 F.2d 1281 (9th Cir. 1987). In Scott,

the Ninth Circuit again reviewed the case law

governing the appropriate standard in breach of duty

of fair representation cases. The plaintiff in Scott

contended that the union had represented to him that

the company would be offering at least $70,000.00 in

settlement of his grievance; that he returned to work in

reliance upor. that representation; and that only

$20,000.00 was actually offered. After reviewing the

relevant standard, the Court wrote:

“Even if the union representative misstated

the amount Safeway intended to offer in

settlement, at most this misstatement was

arguably negligent. It did not rise to the level

of arbitrary conduct required to establish a

breach of the union’s duty of fair representa-

tion. [Citing Peterson, supra.] It is also not

clear how this misstatement prejudiced

Scott’s position.

po

Given the narrow construction of the basis

upon which breach of a union’s duty of fair

representation may be predicated, we hold

that the District Court did not err in granting

summary judgment in favor of the union.”

815 F.2d at 1285.

These are the controlling principles. An error of

judgment, or an act of simple negligence, does not

amount to actionable misconduct. The Court of Appeal

was therefore correct in affirming the trial court’s

grant of summary judgment.

C. This Case Does Not Fit Within The Narrow

Exception Articulated In Dutrisac.

Penman seeks to squeeze this case within the narrow

confines of Dutrisac v. Caterpillar Tractor Company,

supra, 749 F.2d 1270. In that case, the union missed the

deadline for filing a grievance. The union had

previously judged the grievance to be meritorious, and

declared its intention to pursue the matter to

arbitration. Dutrisac, supra, 749 F.2d at 1273-74. The

missed deadline was not a conscious act, but an

unexplained accident. No judgment was involved, and

the Court found liability acceptable as a means of

tightening the union’s control over the mechanical

function of filing grievances in a timely manner. /d., at

1274.

The decision itself was limited to “ministerial acts”’.

Id., at 1273. Subsequent decisions have consistently

limited Dutrisac’s “seeming aberrance”’ in interjecting

a negligence standard, Eichelberger, supra, 765 F.2d at

855, and have highlighted the contrast between

—

ministerial acts and a union’s conscious exercise of

judgment. Id., at 855, note 7. Accord Peterson v.

Kennedy, supra, 771 F.2d at 1254, and Castelli v.

Douglas Aircraft Company, 752 F.2d 1480, 1482-83 (9th

Cir. 1985). Because the alleged union misconduct in

this case is providing an arguably misleading interpre-

tation of the collective bargaining -agreement, rather

than an unexplained and severely prejudicial failure to

perform a necessary task on a member’s behalf, this

case falls well within the range of discretion accorded

unions in the performance of their representational

function.

To the extent that Penman relies upon Robesky v.

Qantas Empire Airline, Ltd., 573 F.2d 1082 (9th Cir.

1982), that reliance is similarly misplaced. In Robesky,

the company offered the grievant reinstatement in

settlement of her grievance. Unknown to the grievant,

the union had decided not to take her grievance to

arbitration. In reliance upon the union’s original

representation that it was going to arbitration, the

grievant rejected the company’s offer. The Court

found:

“The union officers were fully aware of the

situation. It was they who had decided prior

to negotiations that appellant’s grievance

would not be arbitrated. It was they who had

agreed to and accomplished a formal with-

drawal of the grievance from arbitration as an

element of the settlement. The union officers

had ample opportunity to convey the critical

information to appellant... .”

Id., at 1091.

——————————

= wn

The Union’s alleged misconduct in Robesky was thus

the unexplained failure to perform the very small task

of notifying the grievant of its withdrawal of her

grievance. By contrast, the misconduct alleged in this

case is communication of a Union representative’s best

judgment as to the meaning of a new agreement which

had not yet been reduced to writing. At worst, Union

representative St. Johns expressed an opinion that the

contract language which would be relevant to

Penman’s case had not changed. If that opinion was

wrong, St. Johns was wrong on a matter of judgment,

and federal law finds no breach of the duty of fair

representation. Hines v. Anchor Motor Freight, 424 US.

554, 571, 96 S.Ct. 1048, 1059, 47 L.Ed.2d 231 (1976);

Peterson, supra, 771 F.2d at 1254-55.

Further, Appellant’s situation differs from that in

Robesky, in that as the trial court and the Court of

Appeal both concluded, the Union in this case was

extremely cooperative in helping Penman’s chosen

representative to prepare for and evaluate the case.

Unlike the facts in Robesky, the Union’s conduct here

did not curtail Penman’s right to go to arbitration.

Rather, the Union undisputedly stood ready to proceed

to arbitration, regardless of its view of the merits of

Penman’s case. It was Penman’s chosen representative,

Mr. Lowe, who chose an alternate path.

Thus it is not the intentional or unintentional

conduct of the Union that is at issue here, but the

clearly intentional and deliberate choice of Mr. Lowe.

The only wrong charged to the Union by Penman is the

Union’s failure to disclose to Lowe a change in the new

collective bargaining agreement which Penman now

believes would have aided his case. Yet, in the best

pa om

judgment of the Union representative assisting Mr.

Lowe, the new language was simply a repetition of an

earlier provision which had been construed in

arbitration decisions as ineffective to protect employ-

ees in Penman’s job classification. The “new” language

was therefore of no benefit to Penman. Because the

Union’s advice involved judgment and discretion,

neither Dutrisac nor Robesky applies.

Regardless of who was responsible for the abandon-

ment of Penman’s grievance, however, the abandon-

ment was premised on an interpretation of the

collective bargaining agreement. If, as both the trial

court and the Court of Appeal concluded, the

responsibility lay with Mr. Lowe,* the Union is free

from liability and affirmance of the summary

_ judgment was correct. If, as Petitioner contends, Lowe

acted in reliance upon what amounted to an incorrect

3 Because the grievant’s chosen representative was an attorney,

that attorney may certainly be presumed competent to form his

own opinion as to the viability of his client’s grievance.

Additionally, had Mr. Lowe waited to abandon the grievance until

after a copy of the new collective bargaining agreement was

prepared, he would have been in a position to independently review

the new contract language. Instead, it appears from the record that

Mr. Lowe chose to rely upon the provisions of Article 68(c), the

only substantive section on job tenure found in the 1976 contract.

Presumably, Mr. Lowe’s theory crumbled when the Union

informed him that Article 68(c) was deleted from the new

Agreement. Because Mr. Lowe apparently did not find the non-

Article 68(c) “discharge for cause” provision in the 1976

Agreement a sound basis for argument, the record leaves very little

doubt but that Mr. Lowe would have agreed with the Court of

Appeal and found no substantive right to discharge only for cause

in the relocated 1979 reference to “‘discharge for cause” found in

the procedural language of the amended Article 7.

interpretation of the new contract, summary judgment

was still the correct resolution of the case, in that

federal law grants unions the discretion to make errors

of judgment without liability. Peterson, supra, 771 F.2d

at 1255.

D. Penman’s “Evidence” Of Intentional Union

Misconduct Does Not Affect The Correctness

Of The Court Of Appeal’s Decision.

Penman offers as “evidence” of the Union’s alleged

bad faith a memo from one employer representative to

another, in which the former tells the latter that the

Union representative is “going through the motions” of

the grievance procedure. Petitioner’s allegation of

error is that the trial court, and later, the Court of

Appeal, ignored the significance of this memo. If the

lower courts did ignore the memo, they were simply

following the law. Its contents are inadmissible hearsay

under California Evidence Code Section 1200, and the

California Code of Civil Procedure, Section 437(d),

requires courts to consider only admissible evidence on

motions for summary judgment.

Moreover, even assuming that the courts considered,

and then rejected, the contents of the memo, such

action is appropriate under federal law. It is not a

union representative’s level of personal enthusiasm

which is at issue in a fair representation action, but

whether or not the union’s representation was

“arbitrary, discriminatory, or in bad faith.” Vaca v.

Sipes, supra, 386 U.S. 171, 190; Eichelberger v. NLRB,

supra, 765 F.2d 851 (no breach where union’s only

effort was to read and reject the grievant’s letter

explaining her claim).

a ae

Petitioner’s argument also fails because of the nature

of appellate review. First, an appellate court must

presume that the judgment or order appealed from was

correctly decided by the trial court. Denham vy. Superior

Court, 2 Cal.3d 557, 564, 86 Cal.Rptr. 65, 69 (1970);

Walling v. Kimball, 17 Cal.2d 364, 373, 110 P.2d 58, 63

(1941). The appellate court must adopt all inferences to

affirm the judgment unless the record expressly

contradicts them. Thus, unless the record affirmatively

demonstrates the error, the appellate court must

presume that the evidence and findings support the

judgment, Kompf v. Morrison, 73 Cal.App.2d 284, 166

P.2d 350 (1946), and that that trial court based its

decision on appropriate findings and disregarded

incorrect or insufficient ones. Brewer v. Simpson, supra,

53 Cal.2d 567, 583, 2 Cal.Rptr. 609, 616.

In this case, the trial court held that:

“There is no triable issue as to the material

facts that the failure of Plaintiff through his

attorney to complete the grievance procedure

provided by the Collective Bargaining Agree-

ment was a conscious decision based upon an

evaluation of the chances of success of the

claim and was not based on any matters

stated by Union representatives or any delay

in obtaining a copy of the 1979 Collective

Bargaining Agreement.”

(Petition, p. B-2)

Accordingly, the Court of Appeal was to extend

great deference to the conclusion that no material

factual issues remained. Nevertheless, the Court of

Appeal specifically and independently refuted Appel-

lant’s argument to the contrary:

—, . om

‘“‘Penman’s argument continues to the effect

that a question remains as to whether Lowe’s

failure to take the case to arbitration was

based upon a ‘conscious decision’ as found by

the trial court, or was caused by St. Johns’

false and fraudulently misleading advice.

However, Penman’s insistence that the

Union breached its duty of fair representation

to him through St. Johns’ interpretation of the

new Agreement is without justification.

Simple negligence or errors in judgment on

the part of a union are insufficient to support

a breach of the union’s duty of fair

representation.” :

(Petition, p. A-12)

Inherent in the decisions of both lower courts is the

conclusion that the alleged “‘evidence” of bad faith

reviewed by each was insufficient to convince either

court of the existence of a breach. Both concluded, as a

matter of law, that no material factual issues remained

and that on the basis of the undisputed record,

summary judgment was appropriate. This conclusion is

consistent with federal case law. See Peterson, supra,

771 F.2d 1244, and Scott, supra, 815 F.2d 1281.

Because the memo did not contain admissible

evidence; because “going through the motions” is not

actionable misconduct; and because the Court of

Appeal adhered to both substantive federal law and the

relevant state law standards for appellate review,

Penman’s bad faith argument fails to state a basis for a

grant of certiorari.

|

III

THE COURT OF APPEAL ACTED CONSIS-

TENTLY WITH FEDERAL LAW WHEN IT

AFFIRMED SUMMARY JUDGMENT ON THE

ISSUE OF EQUITABLE ESTOPPEL

The federal doctrine of equitable estoppel has four

elements: (1) the union must have been aware of the

true facts; (2) the union must have intended its

misrepresentation to be acted upon or acted so as to

confer a reasonable belief that it was so intended;

(3) plaintiff must have been ignorant of the true facts;

and (4) plaintiff must have detrimentally relied upon

the union’s misrepresentation. All four elements

assume the falsehood of factual information given to an

employee by a union.

In theory, the doctrine may be used to impose

liability. In Acri v. International Association of

Machinists and Aerospace Workers, 781 F.2d 1393 (9th

Cir. 1986), union representatives told striking members

that the company had agreed to remove the existing

limit on severance pay. The membership ratified the

new contract. Later, the membership realized that the

company had not agreed to change the severance pay

provisions. There was no breach of the duty of fair

representation because plaintiffs could not prove that

they would have voted differently had there been no

misrepresentation, nor that the company would have

agreed to the requested severance pay provision had

the vote been different.

Similarly, there was no liability under an estoppel

theory because the plaintiffs could not demonstrate

aa, ae

that they had relied on the misrepresentation to their

detriment. The Ninth Circuit therefore upheld the

summary judgment of the lower court on both theories.

Appellant had similar proof problems here. The

undisputed record shows that:

(1) Lowe had a copy of the 1976 Agreement

containing a provision concerning “discharge for

cause”;

(2) The Union gave Lowe copies of arbitration

decisions discussing non-Roster employees’ contrac-

tual rights upon discharge;

(3) The Union truthfully informed Lowe that the

phrase “‘discharge for cause” contained in Article 63)

of the 1976 Agreement was now included in the

grievance and arbitration provisions of Article 7 of the

new Agreement;

(4) The Union truthfully told Lowe that Section

68(c) of the 1976 Agreement had been eliminated in

the 1979 Agreement and that the new Article 7

governed Penman’s rights;

(5) Lowe made an independent evaluation of the

merits of Appellant’s grievance, and concluded that

arbitration would be futile.

The doctrine of equitable estoppel thus has no

application. Although the Union was aware of the true

facts, i.e., that certain language had been deleted and

other language rearranged, Lowe was also aware of the

true facts. There was no deception. Because there was no

misrepresentation, there was no mistaken reliance. The

Court of Appeal correctly concluded that elements of

the doctrine do not exist on the record.

—_, a

CONCLUSION

For all the reasons set forth herein, Respondent

Publicists Guild, Local 818, IATSE, respectfully

requests that Penman’s Petition for Writ of Certiorari

be denied.

Dated: December 10, 1987

Respectfully submitted,

LEO GEFFNER

TAYLOR, ROTH,

BUSH & GEFFNER

Counsel for Respondent

TERRI A. TUCKER

Appellate Counsel

PROOF OF SERVICE BY MAIL

State of California

SS.

County of Los Angeles

I, the undersigned, say: I am and was at all times herein

mentioned, a citizen of the United States and a resident of the

County of Los Angeles, over the age of eighteen (18) years and

not a party to the within action or proceeding; that my business

address is 10835 Santa Monica Boulevard, Los Angeles,

California 90025; that on December 10, 1987, I served the

within Respondent’s Brief in Opposition To Petition For Writ

Of Certiorari To The Court Of Appeal Of The State of

California, Second Appellate District, Division Three in said

action or proceeding by depositing true copies thereof,

enclosed in a sealed envelope with postage thereon fully

prepaid, in the United States mail at Los Angeles, California,

addressed as follows:

Clerk, United States Charles Theodore Mathews, Esq.

Supreme Court William D. Evans, Esq.

One First Street, NE. Mathews and Evans

Washington, D.C. 20543 Attorneys at Law

(Original + 40 Copies) 3424 Wilshire Blvd.

Suite 1000

Los Angeles, CA 90010

(3 Copies)

I declare under penalty of perjury that the foregoing is true

and correct. Executed on December 10, 1987, at Los Angeles,

California.

ude A.

(Original signed