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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1196

## Text

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,
—- J
‘ r eka {- 3 la s¢
i; 4 ‘ ‘e | JJ 2 ava a i 4
oF r AS + 27) ce ee > | +4 )
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

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.

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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

4°) in ty $2 7 (Qrr
ZO I pi c YP 56 I j i
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
A 4 A 4 =. 2 4 c if
roy , NG power ? t
al ZA L111T19 oO a A
+ ]
y < vr rr ,rY
L©qG AJ iad a \JAad iia | 1@) IS €
I
} 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 |
_ r 4
4 ACA s y

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
, ’ ,
S|
;
’ ‘
Wwtua iy
:
,

=

that var
Rockwell

pi oceedi

*
‘ 2"
| - = |

aXLAL Ge Ge A

+ ar y
7 i al 7
i i w
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7 .
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the U1
wi
OK ] zz
cat Ot
ernatl
ntaitit’

.

ed

7
-

employees a

under

elatir

,
hes:
,
| |
;
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_— ;

oath

to

_r? ry TY’Y
yents ana em
. | + ;
y
Le. sad i | i
To Ly + |
Vick y
4
c .
7 7
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, icymenit
ALAM ‘ Aid
y ¥ ? y - @
2 ‘ i

nd agents

during

the unde:

lying

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rf Wel qT) fOTIU LMS l lf | (L€¢] !
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w ’ P i i

‘ ry), y y P ‘ y

i i } ii »? Ai i
1d) ita an Federat.¢ 1 Department
Core , I V Moite, 452 J 494
(1981) (Matters once Cried shall he

as between

rv
t | cy ) 'T'> f . Defandanr’.
if part Lf } « L111e re Ore Mel_Le.q) Afi ‘
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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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paid, addressed as follows:

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AOoODaRTL ARIT\S DCAAI

Fi wollen & a ANI OGROUIN

1678 West Broadway
ite 101

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Anaheim, California 9280:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1165%3A1. Public record. Not legal advice.