Petition for Writ of Certiorari — Vickroy v. Rockwell International Corp.

Suprema Court, U.S.

i 4 hp

981225 JAN 1 8 1994

OFFICE OF THE CLERK

CASE NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

LLOYD VICKROY,

Petitioner

vs.

ROCKWELL INTERNATIONAL CORPORATION,

AUTONETICS ELECTRONICS SYSTEMS,

Respondent

On Writ of Certiorari to the

Court of Appeal for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

DALE M. FIOLA #76397

Attorney for Petitioner

1678 West Broadway, Suite 101

Anaheim, California 92802

(714) 776-3840

_— Was it error for the District Cort

and for the Ninth Circuit, not to

Characterize the Comp:aint to include a claim

under the Fair Labor Standards Act (FLSA)

when similar state labor claims had been

alleged?

2. Was it error for the District Court,

and for the Ninth Circuit to find that res

judicata barred VICKROY’S second action when

there were viable FLSA claims that had not

been considered by the court?

3. If the Union elected not to

arbitrate a grievance, does the grievant have

the right to pursue arbitration on his own

behalf?

4. Are California Labor Code Sections

200 et seq. providing for the recovery of

overtime compensation, penalties and interest

by an employee preempted by Section 301 of

Labor Management Relations Act?

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES

JURISDICTION

QURSTIONS PRESENTED.

1. Was it error for the District

Court and for the Ninth Circuit

not to characterize the Complaint

to include a claim under the Fair

Labor Standards Act (FLSA) when

Similar state labor claims had

been alleged?

2. Was it error for the District

Court, and for the Ninth Circuit,

to find that that res judicata

barred VICKROY’S second action

when there were viable FLSA

claims that had not been

considered by the court?

- [If the Union elected not to

arbitrate a grievance,

does the grievant have

the right to pursue

arbitration on his own

behalf?

4. Are California Labor Code

Sections 200 et seg. providing

for the recovery of overtime

compensation, penalties

and interest by an employee

preempted by Section 301 of Labor

Management Relations Act?

STATUTES INVOLVED

STATEMENT OF CASE

STATEMENT OF FACTS

REASONS FOR GRANTING WRIT

1. REVIEWING AND DISTRICT COURT

ERRED IN NOT CHARACTERIZING

PETITIONER’S COMPLAINT AS AN

FLSA CLAIM WHEN SIMILAR STATE

ie

LABOR CLAIMS HAD BEEN ALLEGED . .14

2. VICKROY’S FLSA CLAIM ARE

NO'TT BARRED BY RES JUDICATA

BECAUSE THEY WERE NEVER

CONSIDERED BY THE LOWER OR

APPELLATE COURTS ......-+ +. 20

3. WHERE A UNION ELECTS NOT

TO ARBITRATE A GRIEVANCE,

GRIEVANT SHOULD BE PERMITTED TO

CONTINUE WITH ARBITRATION WITHOUT

BER CRG wn sk ee OU ee wt ee

4. VICKROY’S STATE LABOR CLAIMS

SHOULD HAVE BEEN CHARACTERIZED AS

FLSA CLAIM AND WERE NOT PREEMPTED

BY SECTION 301 OF THE LMRA .. . 24

(AGRA 6 es ae te 6 ee ee ee eee

% e

TABLE OF AUTHORITIES

PAGE

Application of Susquehanna

Collieries Co.

(1943), 49 F.Supp. 845

Baltimore S.S. Co. vs. Phillips

(1927), 274 U.S. 316

Bowe vs. Judson C. Burns, Inc.

(1943, 320 Cir.), 137 ¥.26-37

Del Costello vs. Teamsters

46 U.S. 151, 103 S8.ct. 2281

$s 2} ee ae a er eo

Federated Department Stores Inc.

vs. Moite, 452 U.S. 394 (1981)

Haddock vs. Board of Dental

Examiners of California

(9th Cir., 1985), 777 F.2d 462, 464

Harris vs. Alumax Mill Products,

Inc, 897 F.2d 400, 403

(9th Cir.) :

Johnson vs. Butler Brothers

(1947, 8th Cir.), 162 F.2d 87

Lingle vs. Norge Division of

Magic Chef, Inc.

486 U.S. 399, 413 (1988)

McClosky & Co. vs. Eckhart

(1947, Sth Cir.), 164 F.2d 257

Patterson vs. McLean

,aa

ye

Patterson vs. Allied Chemical

and Dye Corp.

(1947), 69 F.Supp. 804 ....... .19

Phillips vs. Carborundum Co.

(1973), 361 F.Supp. 1016 ...... 25

Sea-land Services, Inc. vs. Gaudet

rer. ee tioie OFS -« « ‘soo we eos 21

Shandelman vs. Schuman

(3980),, 92 P.G@upp. 334 . « s « «© © «6 1a

Type Trades Counsel UA Local 159

vs. Under n ntractors

Association (1987, 9th Cir.),

i St BR .,

United Steelworkers of America

vs. Wayer and Golf Navigation Co.

(2960), 363 U.S. S74 . «© «© © © © © © 0am

Vaca vs. Sipes

th. ee Wes SEE « sa 6.6 @€ « =) (ae

STATUTES

PAGE

ee ee, Beerion 3764 ..6+5s82 6 e

ae SC. Sections 295-4157 . .« 6 es ee

42 U.S.C. Sections 1981 and

1983 Je Ge Ba 2S

ae U8. Section 358 ef gag... . +s

26 U.S.C. Section 18S{a) ...... .6

Vv

California Labor Code Sections

200(a) (b); 204(b); 206(a):;

216(a), (b) -6, 16, 24, 25

a2 U.S.C. Section 158(a) ...... 6

28 U.S.C. Section 1343(2) ...... 6

29 U.S.C. Section 160(b) ...... ..7

Section 301 of the LMRA ........7

a2_U.8,.C. Section 1983... . . . « «7

Title VII of the Civil Rights

SE sb eg ce 6) -o 6 @ a we ll

California Labor Code, Section

ee 6 se se ate ee et ke eel ew es SS

California Labor Code Section

th ee ee ee oe ee:

22.U.8.C. Section 255(a) ...... .22

a2 U.8.C. Section 385 ......«.-« 623

29 U.S.C. Section 215(a)(3) . ... ..25

vi

CASE NO...

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

LLOYD VICKROY,

Petitioner

vs.

ROCKWELL INTERNATIONAL CORPORATION,

AUTONETICS ELECTRONICS SYSTEMS,

Respondent

On Writ of Certiorari to the

Court of Appeal for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

DALE M. FIOLA #76397

Attorney for Petitioner

1678 West Broadway, #101

Anaheim, California 92802

(714) 776-3840

TO THE HONORABLE, THE CHIEF JUSTICE AND

THE ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES OF AMERICA:

The Petitioner, LLOYD VICKROY, prays

that a Writ of Certiorari be issued to

review the Order granting Respondent

ROCKWELL INTERNATIONAL CORPORATION’S

(ROCKWELL) Motion for Summary Judgment

on October 27, 1992, and the decision of

the United States Court of Appeal for

the Ninth Circuit affirming the decision

of the lower court and denying a

Petition for Rehearing on October 26,

1993. Furthermore, Petitioner requests

this court to review the Order and

Judgment on the first action entitled

LLOYD VICKROY we. ROCKWELL INTERNATIONAL

CORPORATION, AUTONETICS ELECTRONICS

SYSTEMS, Case No. CV 89-5321 RB (Ex),

hereinafter referred to as VICKROY I,

filed on July 23, 1990 and the Order of

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VICKROY II

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printed in Appendix "A" hereto. The

United States Court of Appeals for the

Ninth Circuit decision in VICKROY I,

filed June 4, 1991, is unreported and

printed in Appendix "A" hereto. The

United States Court of Appeals for the

Ninth Circuit Order denying the Petition

for rehearing, filed July 18, 1991, is

unreported and printed in Appendix "A"

hereto.

JURISDICTION

The Order granting ROCKWELL’S

Motion for Summary Judgment in the

United States District Court, Central

District of California, on VICKROY ITI

and the decision of the United States

Court of Appeals for the Ninth Circuit

affirming the. decision of the District

Court and denying the Petition for

Rehearing was filed respectively on

October 27, 1992 and October 26, 1993.

TIONS PRESENTED

‘rror for the District

Ninth Circuit not to

Complaint to include a

Fair Labor Standards Act

ar state labor claims

rrror for the Distric

the Ninth Circuit to find

barred VICKROY’S

when there were viable

had not been considered

T Wat, ] ’ 7

Union e.i¢ cted not to

have the right to pursue arbitration on

I Own behalf ?

4 Are California Labor Code

ections providing for the recove) vy of

Vert ime compensation, pe rif

Interest by an employee preempted by

section 301 of Labor Management

Relations Act?

STATUTES INVOLVED

Fair Labor Standards Act (FLSA), 29

U.S.C. Sections 213-217.

Civil Rights Act of 1866 (42 U.S.¢

sections 1981 and 1983)

section 301 of the Labor Management

Relations Act, 29 U.S.C. Section 158 et

. ri.) 4 ts . “ ' < i ase ons

seq. California Labor Code Section 2

STATEMENT OF CASE

Petitioner VICKROY on J liy 20, 198

filed in the Superior Court of

l1+¢ : ”~ +7 + ~ ’

-Aiifornia, County of Orange, a

Complaint for wages, violation of

contract, damages and penalties against

ROCKWELL INTERNATIONAL CORPORATION. On

September 7, 1989, ROCKWELL removed the

ict I ct! l I I iZt to tH

Federal District Court. The ground for

said removal was that Section 301(a) of

the Labor-Management Act of 1947 was a

federal question governing the terms and

conditions of the collective bargaining

agreement in effect in which VICKROY was

exclusively represented by the

International Brotherhood of Electrical

Workers (IBEW). On October 19, 1989,

the United States District Court granted

removal because of the federal question

involving Section 301(a) LMRA (28 U.S.C.

Section 185(a). On April 9, 1990,

VICKROY filed an Amended Complaint which

alleged violations of 42 U.S.C. Section

1981 and 1983 and California Labor Code,

Sections 200(a) (b); 204(b); 206(a);

216 (a) (5) along with 29 U.S.C. Section

158(a) and 28 U.S.C. Section 1343(2).

In his complaint at paragraph 4, VICKROY

negligently, willfully and fraudulently

failed to pay him all of his wages

including, but not limited to overtime

compensation. In his original

complaint, VICKROY specifically stated

"that on January 8, 1988, Defendant did

fail to make payment of the unscheduled

day of overtime worked by the Plaintiff

On December 31, 1987." That original

complaint was attached to the Notice of

Removal as an Exhibit "A" by ROCKWELL.

On June 25, 1990, ROCKWELL filed a

Motion for Summary Judgment Claiming

that VICKROY’S state claims were

preempted by the LMRA and that the six-

month statute of limitat ions established

g

by Section 10(b) of the National ha bor

Relations Act, 29 U.S.C. Sect ion 160 (b)

was applicable to VI CKROY’S claims unde!

Section 301 of the LMRA. Del Costello

vs. Teamsters, 46 U.S. 151, 103 S.ctCt.

2281 (1983). ROCKWELL in support of its

claim that there were no genuine issues

of material fact stated that VICKROY’S

contentions with respect to pay are not

actionable under 29 U.S.C. Section 1981.

On July 23, 1990, the matter was heard

before Honorable Robert C. Bonner, Judge

presiding. Transcripts of the hearing

confirm that the court granted Summary

LMRA preempted most, if not all, of

VICKROY’S claims. The court also

determined that VICKROY’S California

Labor Code claims were preempted under

Section 301 of LMRA. The court

determined that the Supreme Court

9

decision of Patterson vs. McLean, 109

S.Ct. 2363 (1989), limited the scope of

a section 1981 claim to the making and

enforcement of contract and that the

function of enforcement of aoc ntract

was not involved with VICKROY’S claims

for overtime compensation. Lastly, the

court determined that any Section 1983

Claim was not viable inasmuch as

ROCKWELL was not acting under color of

State law. On July 23, 1990, District

Judge Bonner executed the Order and

Judgment in favor of ROCKWELL. On July

27, 1990, VICKROY filed a Notice of

Appeal. The matter was briefed and, on

June 4, 1991, United States Court of

Appeals for the Ninth Circuit found that

non-payment of overtime wages is not

protected by section 1981, that there

was no color of state law that would

implicate a violation Of 29 U.S.C,

10

Section 1983, that the statute of

limitations on a claim of breach of the

duty of fair representation is s1x

months as established by the Del

State labor law claims are preempted by

Section 301 of LMRA. The Ninth Circuit

found that there was no genuine issue of

material fact and affirmed the granting

of Summary Judgment. VICKROY filed a

Petition for Rehearing to the Ninth

Circuit which was denied on July 18,

1991.

On January 22, 1992, VICKROY filed

a Complaint in VICKROY II. On February

19, 1992, ROCKWELL answered the

Complaint. On September 4, 1992,

ROCKWELL filed a Motion for Summary

Judgment along with a Statement of

Uncontroverted Facts and Conclusions of

Law. On October 14, 1992, VICKROY filed

11]

Opposition to said Motion. On October

27, 1992, the court granted ROCKWELL’S

Motion for Summary Judgment. Summary

Judgment was filed and entered on

October 29, 1992. In a two page

decision, Honorable A. Andrew Hauk,

Senior United States District Judge,

ruled that there was no genuine issue of

material fact finding that Summary

Judgment on the same issue was barred by

the principle of res judicata, referring

to the decision of Federated Depa ‘tment

Stores, Inc. vs. Moite, 452 U.S. 394,

(1981). On November 2, 1992, VICKROY

filed a Notice of Appeal to the Ninth

Circuit. On or about June 18, 1993,

United States Court Of Appeals for the

Ninth Circuit affirmed the District

Court’s decision granting ROCKWELL’S

Motion for Summary Judgment. On October

26, 1993, VICKROY’S Petition for

12

Rehearing was denied.

STATEMENT OF FACTS

Petitioner VICKROY has worked fo!

currently employed there. Throughout

his employment, Petitioner was a member

of the International Brotherhood of

Electrical Workers, Local 2295 ("IBEW").

IBEW was the exclusive bargaining

representative for VICKROY during the

time of his employment with ROCKWELL.

The employment of VICKROY with ROCKWELL

was subject to the provisions of several

contracts between ROCKWELL and IBEW.

The contract that governed VICKROY’S

employment during the time of the non

payment of overtime compensation was thé

"Agreement between ROCKWELL

INTERNATIONAL CORPORATION and

International Brotherhood Of Electrical

Workers effective september 20, 1987"

(hereinafter yr eferred to as "t he

Collective Bargaining Agreement af

Article XVI, Sect ion 4 of the Co] lective

Bargaining Agreement covers the subject

Of overtime compensation. Article XVI] P

section 8, covers the Subject of

paydays. Articles v and VI cover the

Subject of grievances and arbitrations,

respectively.

During the last week Of December of

1987, ROCKWELL Closed its facilities

except for emergency work. VICKROY was

scheduled to work Overtime during the

Shutdown period and in fact worked such

Overtime. On December 30, 1987, VICKROY

was asked by his Supervisor to work

vertime on December 31, 1987. During

the shutdown period, the payroll

department was open. VICKROY was

14

entitled to receive his overtime pay

check on Friday, January 8, 1988 for the

work he had completed on December 31,

1987. But for some unexplained reason,

on January 8, 1988, Petitioner neve!

received such compensation. On January

11, 1988, VICKROY filed a grievance with

IBEW under the Collective Bargaining

Agreement concerning the non-payment of

overtime on December 31, 1987.

Thereafter, ROCKWELL made some effort to

surrender the payroll check for overtime

compensation to him, but VICKROY refused

the check because it did not include

interest lost or penalties associated

with the failure to pay on January 8th.

Upset with the situation, ROCKWELL

issued VICKROY 25 penalty points under

the plant disciplinary rules for

interfering with the efficient operation

of the payroll department. Thereafter,

15

VICKROY filed a grievance protesting the

penalty points Claiming that it was in

retaliation for his filing a grievance

with respect to the overtime

compensation. VICKROY further contended

that his refusal to accept the overtime

check submitted by ROCKWELL without

payment of additional penalty or

interest was Supported by his fear that

by accepting the check he would be

compromising or waiving his grievance.

At certain pointes when ROCKWELL

presented the overtime Check, VICKROY

asked for assurances that his receipt of

Said overtime check would not compromise

Or waive his grievance. To further its

efforts to harass VICKROY, ROCKWELL

Suspended VICKROY on March 23rd, 24th,

and 25th for interfering with the

efficient operation of the payroll

department and he was denied pay during

16

ne

_

and

~

,

nd

€

arbitration.

retaliation and discrimination after

making a claim fo;y Overtime

compensation.

The lower courts determined that

preemption barred all of the claims of

VICKROY and that there was no genuine

issue of mat e€rial fact.

Based on the foregoing Statement of

Facts and Statement of Case, and the

Nature of the Action and Relief sought,

Petitioner raises the following

questions.

REASONS FOR GRANTING WRIT

1. REVIEWING AND DISTRICT COURT

ERRED IN NOT CHARACTERIZING PETITIONER’S

COMPLAINT AS AN FLSA CLAIM WHEN SIMILAR

STATE LABOR CLAIMS HAD BEEN ALLEGED.

The District Court and the Court of

Appeal for the Ninth Circuit failed to

Characterize VICKROY’S Complaint as

18

entitling him to an act ion based on

violation of the Fair Labor Standards

Act (FLSA). It is undisputed that the

Complaints filed by VICKROY, in VICKROY

I and VICKROY II, dealt with ROCKWELL’S

failure to pay overtime compensat ion to

VICKROY. In all circumstances, the

courts were aware that VICKROY was

representing himself in pro se and did

not have the benefit of legal

representation to fashion the complaint

under the appropriate legal theory for

the redress being sought. The District

Court as well as the Court of Appeal

should have characterized the facts of

the Complaint to support any valid claim

entitling VICKROY to relief not

necessarily the one intended by VICKROY.

A complaint should not be dismissed, nor

should judgment be ordered based solely

upon a plaintiff’s erroneous reliance on

19

the wrong legal theory if the facts

alleged support any valid claim.

Haddock vs, Board of Dental Examiners of

California (9th Cir., 1985), 777 F.2q

462, 464. In the Haddock Case, the

plaintiff sued the State Board of Denta]

rs Claiming that they had

intentionally lowered his examination

Scores because of his race under Title

VII of the Civil Rights Act of 1964.

Later a Motion to Dismiss was granted as

to the Title VII claim. However, the

Court of Appeal found that the facts of

the case would Support a claim under 42

U.S.C. Section 1983 and the Fourteenth

— 5... eS

Amendment and the complaint should not

have been dismissed.

It has been held that for purposes

of granting a Motion for Summary

Judgment against a Plaintiff, in propria

bersonna, the pre se complaint should be

20

Case LmVv©O

9th Circul

dismissal

read liber.

t I

of

y and not dismissed "“unle

hat plaintiff

that would e1

uled the District Court’s

the act

ion without

prejudice was erroneous. All that

plaintiff

was required to do is to

facts justifying rel

required t

o state th

constitutional basis

McCalden v.

Associatio

538 S46.

of Haines v.

action was

n (9th Cir.

In

rder granting dismissal o

the Su

Kerner

reversed

the court stating:

"We

cannot

ief and was not

e statutory or

for his claim.

California Library

preme Court deci

1990), 919 F.

the

st at e

404 U.S. 519, 520

,

and remanded with

say with assura

1c?

rs

that

undey

} COMplaint P Ww) C'T)

We NnNOld to Te : tringent

‘Candards that forma] pleading

Grafted DY lawyers, [ ipoy

beyond doubt Phat the Plaintiff

AT) prove no set Of fac cs 1 J)

Upport of his ¢

would entitle him to relief.

See Haines Kerner 404 U.S

521 S

an ya) . r —_ rrr

J1lOgquardy] ‘i MUTNING,

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i; 4 ‘ ‘e | JJ 2 ava a i 4

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r

+ } QtIroOr roor ha rt +b . uor -

i Na even pdeen he i na wl r)

ane gd " qapna ) rors aIoO Mmrymnr + aa’

A\AA 4A wi OE a | CA | 4 — - JMU LAL ST) A 4a

- . - > + - - + +

. tae" r - ’ r rr at ar

4 > | LUTE 4 — > | E a 2-t4alil , Aa 4LAa

c - | nr > ++ < Otter IAanron-s aver > - ated

ead - it A 4 Ad a 4 Aw — $e fs - AP ialinin a

i 3

+ rho D , - + €¢ tho ro Ft ~ anc aoc >A

J ad AA ili > ad oie me \ J 5 oe | > Aidit

; Nw th, D Zine Ce oe ImMonA ee er

a +0 —Ai riailill ~- +. 4 J en Soe ae J - ZAAsVA SS

- - ~ TImnasr ote. -: - q134ff

VV ; & 4Trr 1r 44 YG md bed C > 20) o. £

- * 4 — 7 WAAd a a 4/70 797 , “UU . - ~ -+- IO,

a > ie ~ 7 rT ~ j r ~ -

] 7 7 ~pa5 3 7 ote an Inoas tr ant r

th - a ke a+ « —_. - hee ee J Ao * 440A LALA <- - ae SS ae 44

(9th Cir. 1988), 861 F.2d 1421-1423.

jee also Karim-Panahi v. Los Angeles

Police Department (9th Cir. 1988), 839

F.2d 621 623% A pro se litigant should

his or her complaint unless it 1s

absolutely clear that the deficiencies

of the complaint could not be cured by

amendment. Sands, supra, 1168.

It is undisputed that Appellate and

District Courts relied upon the

preemptive effect of Section 301 of LMRA

to bar most, if not all, the claims of

VICKROY, including his State Labor Code

violations. In his original complaint

VICKROY alleged that ROCKWELL violated

Labor Code Section 216(b) along with

and 204b

(Q

lO

os

——

Labor Code Sections 200 (a) (b

California Labor Code

and 206(a). >

Section 204 specifically states:

"Notwithstanding any other

provision of this section,

all wages earned for labor

in excess of the normal work

period shall be paid no later

than the payday for the next

regular payroll period. However,

when employees are covered by a

collective bargaining agreement

that provides different pay

arrangements, those arrangements

Shall apply to the covered

employees."

California Labor Code Section 204b

Specifically provides:

"Labor performed by a weekly-

paid employee during any calendar

week and prior to or on the regular

payday shall be paid for not later

than the regular payday of the

employer for such weekly-paid

employee falling during the

Calif

.

. t

Sp

following calendar week."

"Labor performed by a weekly

paid employee during any calendar

week and subsequent to the regula!

iter than seven days after the

egular payday of the employer for

such weekly-paid employee falling

during following

calendar week."

Ornia Labor Code, Section 206(a)

r+

ically provides:

"In case of a dispute over

wages, the employer shall pay,

without condition and within the

ne set by this article, all

wages, Or parts thereof, conceded

by him to be due, leaving to the

employee all remedies he might

other

any balance claimed."

‘wise be entitled to as to

California Labor Code Section 1126

specifically provides:

"Any collective bargaining

agreement between an employer

and a labor organization shall be

enforceable at law or in equity,

and a breach of such collective

bargaining agreement by any party

thereto shall be subject to the

same remedies, including injunctive

relief, as are available on other

contracts in the courts of this

State."

It should have been reasonably

apparent to the Appellate and District

Courts that VICKROY’S claims for

Overtime compensation involved a federal

question - a technical violation of

FLSA. The Appellate and reviewing

courts made no effort to characterize

VICKROY’S complaint as an FLSA

26

complaint, nor did they make any ruling

that the FLSA claim was preempted by

Section 301 of LMRA. There were

sufficient factual allegations to

Support an FLSA claim. The FLSA

regulates, principally, wages and hours

of work in private and public

employment. In order for an employee to

be covered by the FLSA: (1) There must

be an employer-employee relationship;

(2) The individual employee must

personally be engaged in commerce or in

the production of goods for commerce, or

the employee must be employed by an

employer in an ent erprise engaged in

commerce or in the production of goods

for commerce; (3) The employee must be

within the geographical scope of

coverage of the FLSA. There is no

question that VICKROY met all the

requirements to be covered by FLSA. He

A

Z/

WwaS an employee of ROCKWELL and ROCKWELL

waS and is engaged in the production of

goods for commerce and that VICKROY

worked within the geographical scope of

the coverage which was within the

territories or possessions of the United

States. A complaint under FLSA must

contain a short and plain statement of

Claim that shows that plaintiff is

entitled to relief for the employer’s

failure to pay overtime. Patterson vs.

Allied Chemical and Dye Corp. (1947), 69

F.Supp. 804. A complaint to recover

Overtime compensation should State the

rate of pay or wages paid and the amount

Of unpaid overtime. McCloskey & Co. vs.

Eckhart (1947, Sth Cir.), 164 F.2d 257.

It was clear from the pleadings

that VICKROY was seeking overtime

compensation, which was unpaid, and that

he was subject to retaliatory treatment

on the job after filing a grievance with

respect to the non-payment of overtime

compensation. These claims were within

the purview of the FLSA. The failure of

pleadings to include the FLSA claim was

reversible error.

2. VICKROY’S FLSA CLAIM ARE NOT BARRED

BY RES JUDICATA BECAUSE THEY WERE NEVER

CONSIDERED BY THE LOWER OR APPELLATE

COURTS .

The general rule of res judicata

provides that when a court of competent

jurisdiction has entered a valid final

judgment on the merits of a cause of

action, the parties to the suit and

their privities are thereafter bound,

not only as to every matter which was

offered and received to sustain or

defeat the claim or demand, but also as

to any other admissible matter which

29

might have been offered for that

purpose. In order for a judgment to

have res judicata effect it must be

valid, final and on the merits.

Although it is true that a second suit

which is based upon the same cause of

action as to a prior suit, the judgment

upon the merits in the first suit is an

absolute bar to the second suit not only

in respect of every matter actually

offered and received to sustain the

demand in the first suit, but also as to

every ground of recovery which might or

Should have been presented. Sea-land

U.S. 573; Baltimore S.S. Co. vs.

Phillips (1927), 274 U.S. 316. It has

been held that the conclusive eff ect of

a judgment on the merits as res judicata

does not Operate to bar an action on a

different Cause of action. If the

30

vy

st

r)

aid

VI

hree year statute of limitations. See

,

| i A a | i | } ©) aod, ey |

+ + ¥ Stal , + + ¥ >

A ; 2 Ww AU i | |

‘ , y 4 | TOY, ‘ P + y , ‘

A b/ J . I , } ’

‘ t he “an , y .

, , I Au if

, ’ r , Cv} al y 1OC¢ )

J | , ‘ I i | j P 4

. A als ; ‘

7 7 a 4 7c vy f YY y 7,7 ¥ y

1p} 4 hus , Unde? itly i la it ¢

complaints filed in VICKROY TI and

CKROY II were timely filed within the

atute of limitation, and that the

Lon 301 six-month statute is

The court committed error in

ing CO characterize the comp]

id

LSA complaint and then applied the

of the LMRA. Therefore, the legal]

ry Of the FLSA claim is different

in the legal claims that were

legedly adjudicated by Summary

jment Therefore, it was erroneous

for the District Court on October 2/7,

' that y judicata ippli1-¢ }

n ha} ' \ KROY It was also

. For tl Appellate Court tC

W ji { j

: —

3. WHERE A UNION ELECTS NOT TO

ARBITRATE A GRIEVANCE, GRIEVANT SHOULD

BE PERMITTED TO CONTINUE WITH

ARBITRATION WITHOUT HIS UNION.

The decision of Vaca vs. Sipes

(1967) 386 U.S. 171, established the

principle that an individual employee

does not have an absolute right to hav

a grievance against his employer taken

{ irbitration, regardless of the

provisions yf th applicable collective

bargal tract The failure oO!

[IBEW t t e tl matter to arbitrat )

+ + . } . ] —.

thereby frees the employee up to pursut

4 i i

arbitration through independent means

[If the employer refuses to arbitrate

absence of the union, then the

grievant/employee’s only option is

file a lawsuit to compel arbitra

Sulit can be brought under 29 U.S.C

Section 185 to compel arbitration in

which the court has the ability to

compel that the dispute be resolved

through arbitration. See United

Steelworkers of America vs. Wayer and

Golf Navigation Co. (1960), 363 U.S.

574. Type Trades Council UA Local 159

vs. Underground Contractors Association

(1987, 9th Cir.), 835 F.2d 1275.

It was therefore error for the

District and Appellate Courts to

determine that VICKROY’S request f

arbitration was non-actionable when he

had the right to seek arbitrat ion, once

¢

IBEW chose not to pursue the matter

34

J

4. VICKROY’S STATE LABOR CLAIMS SHOULD

HAVE BEEN CHARACTERIZED AS AN FLSA CLAIM

AND WERE NOT PREEMPTED BY SECTION 301 OF

THE LMRA,.

Had VICKROY’ t bint ! I

haracterized as in FLSA action, the!

would have been little or no need to

remove the case. It has been held that

claims under 29 U.5.° Section 216 (pb)

are maintainable in state court ana

F.2d 87 Several case dé 1s1ion

I ¢ c nt LY support tne Ti ur re nt

jurisdict I ver FLSA actl¢ N J

V De sO € I ( j} 1363) ’ 56] I supp i

mV ¢ h I tn i Cl nN Wa r ¢ v as

there was I! requirement on tne }{ irt I

ry

—s

.

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action on the part of ROCKWELL in

penalizing him 25 points under

ROCKWELL’S disciplinary program and then

suspending him for three days without

the FLSA. The lower courts were in

error in failing to realize that there

was a viable legal theory that VICKROY

could have asserted in lieu of his state

labor code claims. Summary Judgment

should have been denied since Section

301 of the LMRA does not bar an FLSA

claim. It is correct that in many

circumstances involving labor relations,

Section 301 of the LMRA preempts state

law claims because resolution requires

the interpretation of the collective

bargaining agreement. Lingle vs. Norge

Division of Magic Chef, Inc. 486 U.S.

399, 413 (1988), Harris vs. Alumax Mill

Products, Inc. 897 F.2d 400, 403 (9th

37

Carat « However, there is no case

decision that bars an FLSA claim because

of Section 301 of the LMRA. Recently in

the 9th Circuit decision of Livadas v.

Aubry 987 F.2d 552 (stn Cir., L991),

Circuit Judge Kozinski j n his dissenti ng

Opinion raises the issue of California

Labor Code Section 229 with respect to

denial of state law benefits because one

is covered by a collective bargaining

agreement. Kozinski squared off the

issue by Stating that where state laws

interfere with the National Labor

policy, those state laws are preempted.

He goes on to state at page 562:

"The question of preemption

1s, Of course, Significant. To the

/

extent the/ commissioner’s

i?

enforcement of Section 201 of the

California Labor Code conflicts

with Federal law , the

authority

iscrimination.

4

7

a

<

‘

ween the

preempted by Federal

they are

with considerat

the lahoyr contr.

Corp. v. Lueck

(1985) We have

language to rem

preemption of

action

on right

Substantial]

see Paige vy,

ned by the

inext ric;

State law

8S created by a

Henry J

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ani ‘a | r va 4 4 if

i 4aClillé ae oO J

t } t + y no rfhar,

c , Lif A A Ail Ay iif I

Y r r tx } y [

Aid AWaDi i i 4 Dé wee A re

i

| | + ¥ ¥ ft -F

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roy , NG power ? t

al ZA L111T19 oO a A

+ ]

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L©qG AJ iad a \JAad iia | 1@) IS €

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} n “+ ~ Tr)? Y TY) nr

A» itl - Jé > = a ~ e Lit -

2

Labor

for violat ing a CBA,

‘YT

‘4 <4

s

if

law

ertwined

founded

A

Or

y dependent On or

y on

I ) hy

. 7

d 4 bd bd

t 4 ae

ry

i

4 he f =|

Lad Mud Nes |

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contract terms negotiated between

parties to labor agreements

+ T a . . y

ropolitan Life Insurance V

A aa 11< < 74 T } A “

Massacnuset P 471 U.: /a%, ] :

7 T y 7 AT ,

& | | i | v i¥ 4

Magic Chef, Inc., 486 U.S. 399

1QORR t Cr} Y y {*rnirt } | j t } t

(J { Zz. Lilt pUpPTre:me Ou if ( Lica t

state-law claims are independent oO!

the CBA and therefore not preempted

where resolution of the

state-law claim does not require

>

nstruing the coliectlvs

: . Y , ’ > A 7

bargaining agreement. id. at 4U/,

108 S.ct. at 188.

"Tn . ly 4 Vat , 22 t }

a yal Ve 24 V KRU! . A

he | } = | ™

//s3 (9tn + > bP, P we

/ . +

TY) Vv 1 TY Y r Y .

emp J yet > i LL i i apoaUit t ai A

I 4

} + rows I ¥ rh< + ’

Dat tel y ised 1 UNSAaLS “ rKA1LMG

conditions was not preempted, even

Pens

.

=

hat

governed the wo

ronment Because th

yee’: laim alleged

luty owed t ill «

iW i lI ] 1 De

it reference t thre

77 (emphasis added) ;

aiso Operating Engineer

as =

Lon

(9th

Y een

ati

Trust v.

Wilson,

Cir. 1990) (Stat

r fraud in the j

+ 7. 7 cD > —

pceda De 1uS¢€ 1T)

under CBA)."

ZINSK1 relies

Ss ; “7 }

i ae ive I il Ta

ma y t ( UY c¢

Atl Y, A / —~ 2 ;

Mm such as rate

1OmM 1 ¢ han if t

LOL MeMCLICS

in determinina

| y

1eC Dé

t

y ,

\

" ,

+

} +

Liat

aw

ve

Va

joined in

Sect LON 4

aj

tr hye aeat ‘Fs

‘ s v

interest

‘Or these

Appellate

determine

preempted

. ,

Laims.

that

an FLSA claim, it appears

O1 of LMRA does not preempt the

m. Any and all claims

the state labor code involving

ery of vertime, penaltir ind

ire not barred by Section 301

reasons, it was error for the

and District Courts to

that the Section 301 LMRA

VICKROY’S state labor law

CONCLUSION

Based on the foregoing facts and

iw, the reviewing court should have

reversed the judgment of th Lower

rt

WHEREFORE, for the rea ns herein

idvanced, ind oO tl 1utl ae ited,

retitioner LLOYD VICKROY rr; spectfully

eview be granted and that this

erse the decis I Ir the Court

APPENDIX

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

LLOYD VICKROY |} CASE NO CV 89-532]

ORDER AND JUDGMENT

Vs.

ROCKWELL

INTERNATIONAL

CORPORATION,

AUTONETICS j

ELECTRONICS ] DATE: July 23, 1990

SYSTEMS, TIME: 10:00 a.m.

CRTM: Honorable

Defendants. ] ROBERT C. BONNER

—

This matter came on regularly for

hearing on the Motion for Summary

Judgment of Defendant ROCKWELL

INTERNATIONAL CORPORATION on July 23,

1990. Defendant appeared through its

counsel of record, William R. Hartman,

Jr. Plaintifif appeared for himself.

After having reviewed the record and a)]]

papers on file herein, and having

considered the argument of counsel, both

written and Oral, the Court rules as

follows:

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that Summary Judgment shall be

entered in favor of Defendant ROCKWELL

INTERNATIONAL CORPORATION on al] causes

Of action.

DATED: July 23, 1990

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LLOYD VICKROY

Plaintiff/Appellant

vs.

ROCKWELL INTERNATIONAL CORPORATION,

AUTONETICS ELECTRONICS SYSTEMS,

Defendants/Appellee

APPEAL FROM the United States

District Court for the Central District

of California.

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the Transcript of the Record from the

United States District Court for the

Central District of California and was

WW

duly submitted.

ON CONSIDERATION WHEREOF, it

is now

ordered and adjudged by this Court

that the judgment of the said District

Court in this cause be, and hereby is

AFFIRMED.

Filed and entered June 4, 1991.

>

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LLOYD VICKROY } NO. 90-55974

} D.C. NO.

Plaintiff/ } 89-5321 RB (Ex)

Appellant, ]

] MEMORANDUM*

vs. ]

J

ROCKWELL ]

INTERNATIONAL, ]

J

Defendant / j

Appellee.

Appeal from the United States District

Court for the Central District ol

California

Robert C. Bonner, District Judge,

Presiding

Submitted April 5, 1991**

Pasadena, California

Before: KOZINSKI AND O’SCANNLAIN,

Circuit Judges and MCNAMEE***

District Judge.

* This disposition is not appropriate

for publication and may not be cited to

Or by the courts of this Circuit except

as provided by Ninth Circuit R. 36-3.

** The panel unanimously finds this case

Suitable for submission on the record

and briefs and without ora] argument.

Fed. R. App. P. 34(a), Ninth Circuit R.

34-4,

*** The Honorable Stephen M. McNamee,

United States District Judge for the

District of Arizona, sitting by

designation.

OVERVIEW

Pro Se appellant, Lloyd Vickroy,

appeals the District Court’s grant of

Appellee Rockwell’‘s motion for summary

judgment. Vickroy’s complaint against

his employer, Rockwell, alleged civil

rights violations under 42. U.S.c.

Sections 1981 and 1983, breach of union

representation, breach of contract,

unlawful discharge, unfair labor

pl aC

emot

Defe

find

fact

aris

for

time

a Ca

2295

Elec

coll

tices, and intent ional infliction of

ional distress. The District

rt ’s decision 158 af fimrmed.

ndant'’s Motion for Summary Judgment

ina no triable issues of fact. The

s are not in dispute. This action

es from a delay in paying Vickroy

one day of overtime work. At the

of the alleged violations, Vickroy,

ucaSian male, waS a member of Local

of the International Brotherhood of

trical Workers ("union"). A

ective bargaining agreement between

the union and Vickroy’s employer,

Rockwell, was in place. The collective

bargaining agreement Cc learly provided

for resolution of disputes with respect

ppt

> overtime pay. Vickroy filed a

ssane +r aammawrehanra watn rho

VaANCe in ac I lance WitCf) tne

collective bargaining agreement.

Rockwell agreed to pay the amount in

question and Vickroy refused to accept

the payment and filed a lawsuit against

Rockwell instead. The union is not a

defendant in this suit.

It

We review a District Court’s

decision to grant or deny a Motion for

Summary Judgment de novo. Continental

CoO. v. City Of Richmond, 763

F.2d 1076, 1078-1079 (9th tC 1985) ;

Lew v. Kona Hospital, 754 F.2d 1420,

1423 (9th Cir., 1985). The standard is

the same that is applied by the District

Court under Federal Rule of Civil

cedure 56(c) and the District Court’s

decision will only be affirmed if the

record, read in the light most favorable

to the non-moving party, establishes

ee)

that

mate!

entitled t

Continent

L079 Ay

against a

an element

case,

the burden of proot

Corporatic

322

Mr.

Rockwell

there

lad L <

oT

~

(1986).

and on which that

Vickroy was

based

vee

party will

and enforcing of a contract. First,

Vickroy is a white male. Second, even

lf Vickroy could Show he was somehow

discriminated against, Section 198]

‘t4aims are limited to t ne making or

enforcement of contracts. See Patterson

Vv. McClean, 49] U.S. 164, 176 (1989).

"The right to make contracts does not

extend ... to conduct by employer after

contract relation has been established,

including breach of terms of contract

s<” Id. at 177. Therefore, non-

Payment of overtime wages is not

protected by Section 1981, and summary

Judgment is appropriate.

42 U.S.C. Section 1983 protects

United States Citizens from deprivation

of rights by another person acting under

color of state law. Because California

state law requires arbitration of these

disputes, Vickroy argues that

: + _ TT, = & 4 Z . co

a private corporation, Was

sf | . ‘ “ +

acting as an agent ol the state wnen

+ |} P + hWam * -~«am y

failed » pay him overtime wag‘

any triable issues of fact that Rockwell

s

was an agent of the State of California.

Absent any showing that Rockwell was

acting under color of state law when it

failed to pay Vickroy overtime wages,

summary judgment is appropriate. See

Celotex, 477 U.S. at 322-23.

Vickroy also argues that he was

denied fair representation by the union

The union, however, is not a party

this suit.

+

: 7 a —— . - an 6 . f

Vickroy sought compensation tor on

J

day of overtime work that was delayed.

The union representative produced a

check from Rockwell for the overtime

11

work which Vickroy refused to accept.

There is absolutely NO evidence to Show

that the union breached its duty to mr.

Vickroy. Vickroy has not designated any

Specific facts Showing that there is a

genuine issue for trial. Therefore,

summary judgment is appropriate. See

Celotex, 477 U.S. at 324.

—

Additionally, the statute of

limitations On a claim of breach of the

duty of fair representation is Six

months. DelCostello Vv. International

Brotherhood of Teamsters, 462 U.S. 425i,

~ it WOC Of Teamsters

163-72 (1983); Kelley yv. Internationa]

Brotherhood of Electrica] Workers, 803

F.2d 516, 518 (9th Car., 1986). The

alleged breach Cook place during the

Summer of 198g. Vickroy did not file

his complaint until July 20, 1989.

Because the Statute of limitations has

run on this Claim, Vickroy is Precluded

12

+ f .

from raising thi:

1dqment IDproy

~~ | & bP as +

iu | : i i

mY , ? ’ ¥

[ : ip}

t1iieqations if bre

inability to pay !

t

Xu

imely manner!

agreement was in

qrievance

)

a. mar

LIi< LU At }

y- } _- +> ~ 4 , } ,1i<

ITMILLAaALCLILIVOIL iu c

7, yy *} eu ry |

Qrievalil and mU '

: . ;

j . ¥ uF “7 * ,» vyY) ’

V CK y vel Litit Ww

J

TY ? = t cy Tt | pi rtr

Ai \ oa \ Loi ltt A wi A

. ‘ ' y ’

Tr LieVaNnCe D1 eedai

, ? | yr rT y ?

reqdue ea Ar D4 la

} + " _— . .

that faiiure to ar

+ , | rt

raul k Kwell,

.

4

im

7 , » ?

iit WU t

y ’ Ky

i as Li

y LJ

| i Va

overtime

which

+ VV

A V

Col

A

‘kY

was

P ssamMmm”

ind SUITMa

+ ¥ , ,

P

y

>

ra ,

I LADO!

wages

covered

all

A collective bargaining

the grievance Procedure by agreeing to

Pay the overtime wages. The arbitration

Clause included in the collect ive

bargaining agreement was Vickroy’s

ma

~

remedy. |} failed to request such

arbitration. Vickroy has made no

Showing to establish the existence of a

triable issue of fact as to breach of

contract, unlawful discharge, and unfair

labor practices, therefore, Summary

Judgment is appropriate. See Celotex,

477 U.S. at 322.

In addition, the Statute of

limitations on an action involving

breach of a collective bargaining

agreement is six months. DelCostello,

462 U.S. at 163-72; Kelley, 803 F.2d at

218. Because the Statute of limitations

has run on this Claim, Vickroy is

Precluded from raising this issue now.

Furthermore, Vickroy’s state law

14

claims are preempted by sect ion 301 of

the Labor Management Relations Act

because their resolution requires the

interpretation of the collective

Division of Magic Chef, Inc., 486 U.S.

399, 413 (1988); Harris v. Alumax Mill

Products, Inc., 897 F.2d 400, 403 (9th

Cir.). cert denied, 111 -S. ct. 102

E

Vickroy has offered no evidence to

support a claim of intentional

infliction of emotional distress.

Absent any evidence of sufficiently

outrageous conduct by Rockwell, Vickroy

has failed to state a claim. McCabe v.

General Foods Corp. 811 F.2d 1336, 134

(9th Cir., 1987). Without any showing

to establish this element of his case,

a]

summary judgment is appropriate. see

=

Celotex, 477 U.S. at waa.

Furthermore, Section 301 of the

Labor. Management Relations Act preempt;

Vickroy’s claim Of infliction of

emotional distress that arises oy

the same conduct which formed the bas is

Of his claims of breach of contract,

unfair labor Practices, and unlawfu]

discharge. Lingle, 486 U.s. at 425;

Harris, 897 F.2d at 403.

F

Finally, Rockwell’s request for

attorney’s fees based on the assertion

that Vickroy filed a frivolous appeal is

denied. Rockwell] filed a Cursory one

and a half Page brief which offered

no guidance to this court on the issues

Or applicable law. Our expectation of

practitioners in this court is much

higher than was Shown by Rockwell’s

counsel on this appeal. Therefore,

16

>

4

qranting

AFFIRMED

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 90-55974

D.C. NO. Cvgg-

5321-RB

LLOYD VICKROY ‘

Plaintiff/Appellant

ORDER

vs.

J

]

J

ROCKWELL INTER

NATIONAL CORP.,

AUTONETICS ]

ELECTRONICS SYSTEMS, ]

Defendant Appellee.

Before: KOZINSKI and O’SCANNLAIN,

Circuit Judges, and MCNAL.“E*, District

Judge.

* The Honorable Stephen M. McNamee,

United States District Judge for tt

istrict of Ari zona, Sitting by

lesi atic

UNITED STATES DISTRICT COURT

FOR THE STATE OF CALIFORNIA

ORDER GRANTING

DEFENDANT’ S

MOTION FOR

SUMMARY JUDGMENT

VS

ROCKWELL INTER

NATIONAL CORP.,

AUTONETICS

ELECTRONICS SYSTEMS,

Defendant -Appellee

INTRODUCTION

18 the Plaintiff, Lloyd

y, f th ted Stat

r , r + ] c +

i l CI I lant ,

\ i i i j

iq ) we

i ] ] V tnt

] ( I BR TY t

Defendant’s mot ion for Summary judgment,

and the Ninth Circuit affirmed.

Plaintiff has now filed ten new causes

Of action against these same Defendants,

‘lLaiming that during the previous

proceedings persons employed by Rockwe}l}

either made misrepresentations while

under oath, or that they allowed others

Co state what they knew to be falsities

in this court. Mr. Vickroy alleges that

this alleged perjured test imony violated

his right to due Process under the Fifth

Amendment to ¢ he United Start es

Constitution. Defendants are now befor:

this Court seeking summaz Y judgment ir

the instant act lon because the lssues

raised by this case have been previously

DISCUSSION

T ‘Wate ‘ yay - " Ts Yryn

1. Motion for cummary Judgmen

. . .

‘\ nam

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. ‘ 4

UNITED STATES COURT OF APPEALS

LLOYD VIC

Plaintiff

VS.

ROCKWELL

NATIONAL

AUTONETIC!

ELECTRON I

Defendant

Before:

NELSON,

den Led

FOR THE NINTH CIRCUIT

KROY, } NO 32-56469

} D.t Ni CV-9

/Appel lant] 9428-AAH

ORDER

INTER

CORP. ,

)

Appel Le

CANBY FERNAT

I t 1aq

Petit I i

'

’

:

;

IN THE

SUPREME COURT OF THE

OCTOBER TERM,

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UNITED STATES

1993

lL, CORPORATION,

CS SYSTEMS,

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Fi wollen & a ANI OGROUIN

1678 West Broadway

ite 101

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Anaheim, California 9280: