Petition for Writ of Certiorari — Conkle v. United States Court of Appeals for the Ninth Circuit

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_—

_-~ Supreme Court, U.S.

(Y) FILED

O5iS8 10 MAY 619%

OFFICE OF THE CLERK

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

SHEILA CONKLE,

Petitioner,

ve.

COURT OF APPEALS FOR THE NINTH CIRCUIT,

Respondent,

SULINNA JEONG, dba LAIRD’S FOOD MARKET,

BALDWIN JEONG, JADELIN ENTERPRISES, a Corporation,

dba LAIRD’S FOOD MARKET, UNITED FOOD AND COMMERCIAL

WORKERS’ UNION, LOCAL 1179 AFL-CIO

Real Parties in Interest

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

WILLIAM J. HOOY, Esq.

HOOY & HOOY

3125 Clayton Road, 2nd FI.

Concord, California 94519

(510) 798-0426

Attorneys for Petitioner

A. Questions presented for review.

1. Where both union leaders and the

employer each have strong personal dislike for a union

member, because of her activities during a strike, does the

"suggestion" by a union Business Representative to that

employer of a facially neutral work restriction, which that

Represenative knows the member can’t meet, constitute

"arbitrary" action in breach of the union’s duty of fair

representation ("DFR") to that member?

3 Did. the Court of Appeals, in affirming

the Judgment of the District Court, violate this Court’s dual

requirements on Summary Judgment that reviewers refrain

from weighing the evidence and draw all reasonable

inferences in favor of the responding party by ignoring

completely Petitioner’s "smoking gun" evidence in deciding

that the UNION did not act arbitrarily in breach of its DFR?

Petitioner’s evidence was a statement as fact by a Business ~

Representative to the union’s Executive Committee (made a

full day before negotiations were even commenced with the

employer involved) that a member would not be hired back,

because of restrictions in her lifting to 25 pounds.

3. Did the Court of Appeals, in affirming

decisions of the District Court, which artificially restricted

Petitioner’s discovery on pendent state claims and then, over

her objections, granted Summary Judgment against her for

lack of sufficient evidence, violate Petitioner’s constitutional

rights to a jury trial on the issues and this Court’s earlier

directions that State claims be dismissed (rather than ruled

upon) in these circumstances?

B. A list of all parties to this proceeding.

Petitioner, SHEILA CONKLE ("CONKLE");

Respondent, COURT OF APPEALS FOR THE

NINTH CIRCIUT;

Real Party, SULINNA JEONG ("SULINNA"), dba

LAIRD’S FOOD MARKET ("LAIRD’S");

Real Party, JADELIN ENTERPRISES, a Corporation

("JADELIN"), dba LAIRD’S FOOD MARKET;

Real Party, BALDWIN JEONG ("BALDWIN"); and

Real Party, UNITED FOOD & COMMERCIAL

WORKERS, LOCAL 1179 ("LOCAL 1179" or the

"UNION").

a Table of Contents and Authorities

Table of Conten

Questions presented for review.

A list of all parties to this

proceeding. .

Table of Contents and ‘Authorities.

Citations of the official and

unofficial reports of the Opinions

and Orders entered in the case by

Commit. 5.3 reap 7

E. Concise statement of the basis for

Page

jurisdiction inthis Court. .... . 7

F. The Constitutional provisions,

statutes, ordinances and regulations

involved in the case, set out

verbatim with appropriate citation... . 7

G. A concise statement of the case

setting out the facts material to

consideration of the questions

presented. 8

l. Basis for federal jurisdiction. aay 8

2. Facts, which support this

3 eS nsat,'s 9

A direct and concise argument

amplifying the reasons relied on for

allowance of the Writ. . . . 13

By ignoring the fact that the

UNION knew CONKLE couldn't lift

more than 25 pounds, when union

officers "suggested" to the

Employers that they require her

to provide a full medical release

before returning to work, the

Opinion misapplies the standard

for "arbitrariness" established by

this Court and as applied by other

Courts of Appeal. .. . eres 13

The opinion ignores both the

requirement that on Summary

Judgment all inferences are to be

drawn in favor of the responding

party and Petitioner’s crucial

"smoking gun” evidence showing the

"suggested" work restriction was

merely a "device" to exclude her

from employment, which together

create triable issues, and, there-

fore, it conflicts with decisions

of this Court and other Courts of

Rea a eee yo 16

. A hearing on this Petition should also

open up the Summary Judgment that was

granted in favor of the Employers on

the Section 301 claims against them,

since the latter was granted solely

because of failure of the DFR claims

against the Union herein. . . . . 22

4. In affirming the decision of the

District Court to artificially restrict

CONKLE’s discovery on pendent state tort

claims against the Employers and then to

grant Summary Judgment against her for

lack of sufficient evidence on their

claims, the Court of Appeals misapplies

recent decisions of this Court and other

Courts of Appeal as to the quantum of

evidence which a responding party must

present to create triable issues. And,

ruling at all violated past directives

of this Court to dismiss the State claims

in such circumstances. ...... 22

CAINS oe 3g cn es ae eS 28

Appendix

Decision of the District Court 853 F.Supp.

1160 A-1

Decision of the Court of Appeal 73 F.3d

909 A-26

Decision of the Court of Appeal denying

Petitioner’s Request for Rehearing and/or

Hearing en Banc. : A-42

Certificate of Service 27

Table Of Authoriti

Page

Cases Cited

Aguinga v. United Food & Com. Workers Inter.

(CA 10, 1993) 933 F.2d 1453, 1471, certden. .. .

114 S.C Bei ees 14,20

Airline Pilots v. O’Neill, 499 U.S. 65, 14, 113

L.Ed2d 511, ill S.Ct. 1127 (1991) ee ee OF 14

Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 17,18,23

248-50, 91 L.Ed.2d 202, 106 S.Ct. 2505 (1986). . 23,26

Banks v. Bethlehem Steel Corp. (CA 9, 1989) 870

00 See Tee Ke oe are SE 19,20

Bennett v. Local Union No. 66 (CA 7, 1992) 958

Fue ee ES oa aS it a ees meer 14,20

Cal. Arch. Bldg. Prod. v. Franciscan Ceramics

(CA9, 1987) 818 F.2d 1466, 1468 ....... 17

Celotex v. Catrett, 477 US 317, 326, 91 L.Ed.2d

205; tO Oa Bee oe ee Bee 24,26

Conkle v. Jeong (DCND CAL 1994) 853 F. Supp.

DUR ise ee ee ea ee 7

Conkle v. Jeong (CA 9, 1995) 73 F.2d 909 el ae 7

Early v. Eastern Transfer (CA 1, 1983) 699 F.2d

522, 557, cert den 464 U.S. 824(1983). .... 16

Ford Motor Co. v. Huffman, 345 U.S. 330, 338,

97 L.Ed. 1048, 73 S.Ct. 681, (1953). ..... 20

Garrett v. City and County of San Francisco

(CA 9, 1967) S18 Fae bones bee 24

Merry v. Coast Community College District

(1979) 97 C.A.3d 214, 22-23, 158 C.R. 603... . 26

Perez v. Curcio (CA 9, 1988) 841 F.2d 255,

TOG. 5 ee RO eee =: 23

Ramona Mannor val n ital v

Enterprises (1986) 177 C.A.3d 1120, 1133, 255

Cs ee) ie ees 25

Schlacter-Jones v. General Tel. (CA 9, 1991)

936: F .24 Gay, eee as ea eee 22

Sischo-Nownejad v. Merced Communit l

Dist. (CA 9, 1991) 934 F.2d 1104, 1110-13. . . . 23

United Mine Workers v. Gibbs, 383 US 715, 726-27,

16 L.Ed.2d 218, 86 S.Ct. 1130 (1966). . . .. . 26

Vaca v. Sipes 386 U.S. 171, 190, 87 S.Ct. 903,

i7 L.BG.20 Gee (i901). 6 x we ea aes 19

onstitution u Rul

Seventh Amendment to the United States

Constitution. . .. . Se Saye ere 823,26

28 U.S.C., Section 1254(1) . RUT ate sere, oe 7

20 Cie. SR SIE gr gg eran gay 8

Section 301 of the Labor Management Relations Act

(29 SE Be. ie De og ae te ws eens 8

Rule 10 of the Rules of the Supreme Court of

ee Se RN os oy ce te eee 7

Rule 56(c) of the Federal Rules of Civil Procedure . 16

Rule 56(f) of the Federal Rules of Civil Procedure . 24,26

D. Citations of the official and unofficial reports

bf the opinions and orders entered in the case

by Courts.

Conkle v. Jeong (DCND Cal. 1994) 853 F.

Supp. 1160

Conkle v. Jeong (CA 9, 1995) 73 F.3d 909

(the "Opinion")

E. Concise statement of the basis for jurisdiction

in this Court.

1. The Ninth Circuit filed its Opinion sustaining

the Judgments below in this matter on December 27, 1995.

2. CONKLE moved for rehearing/hearing en

Banc on January 10, 1996. The Ninth Circuit denied these

motions on February 7, 1996.

3. So far as CONKLE is aware, there is no

cross-petition for certiorari.

4. The statutory provision conferring on this

Court jurisdiction to review the judgment below on a Writ of

Certiorari is 28 USC, Section 1254(1), Rule 10 of the Rules

of the Supreme Court of she United States also provides that

authority.

F. The Constitutional provisions, statutes,

ordinances and regulations involved in the

case, set out verbatim with appropriate

citation.

1. “In suits of common law, where the value

in controversy shall exceed Twenty dollars ($20), the right

of trial by jury shall be preserved, and no fact tried by a

jury, shall be otherwise re-examined in any Court of the

United States, than according to the rules of the common

law." Seventh Amendment to the United States Constitution.

2. "Suits for violation of contracts between an

employer and a labor organization representing employees in

an industry affecting commerce as defined in this Act, or

between any such labor organizations, may be brought in any

District Court of the United States having jurisdiction of the

parties, without respect to the amount in controversy or

without regard to the citizenship of the parties." 29 USC,

Section 185. :

G. A concise statement of the case setting out the

facts material to consideration of the questions

presented.

1. Basis for federal jurisdiction.

CONKLE brought this matter under Section

301 of the Labor Management Relations Act (29 USC,

Section 185) ("LMRA") to recover damages for her wrongful

discharge by defendants and respondents SULINNA,

JADELIN and BALDWIN (collectively the "Employers"),

under Federal Common Law against the UNION for breach

of its duty of fair representation ("DFR") and under State

Law against the Employers for slander and interference with

prospective economic advantage. The District Court had

jurisdiction under 29 USC, Section 185 and Federal Common

Law. The District Court entered its Judgment ("Judgment")

on May 3, 1994, granting Summary Judgment to the

employers and the UNION (collectively the "Respondents”)

on all claims under the Complaint. CONKLE appealed on

June 1, 1994, and the Court of Appeals had jurisdiction

under 28 USC, Section 1291.

2. Facts which support this Petition.

From at least 1976 on, LAIRD’S had operated

as a Union store, and the retail clerks had been represented

by the UNION. Up until the latter part of 1991, CONKLE

had been a clerk at LAIRD’S and had continuously been a

member of the UNION for more than fifteen (15) years. On

November 9, 1991, CONKLE injured her back doing special

heavy lifting, which was thrust on her as a result of

reclassification of her job (from "liquor clerk" to "grocery

clerk"). No other female grocery clerk in the store had to

do, the heavy lifting that CONKLE had to do' and it seemed

this was “punishment” for the UNION’s having gratuitously

"reclassified" her job. She was off for a year with the

injury, drawing Workers’ Compensation. In December,

1992, the Independent Medical Examiner in her case agreed

to allow her to return to work with a 25 pound weight lifting

limit. At this point, the UNION was, under a three (3) year,

Collective Bargaining Agreement (the "CBA"), which had

been entered into only on February 19, 1992. SULINNA,

then owner of LAIRD’S, agreed to allow CONKLE to come

1. From the time that CONKLE first went to

work at LAIRD’S, the store had a longstanding

policy, which allowed women to decide what items

they could and/or could not lift. There were

special employees, who lifted nothing at all (e.g.,

SULINNA). Others lifted very little (e.g., JADE

JEONG ("JADE"), SULINNA’s daughter, who lifted only

what she could easily with one hand). Though this

policy was unwritten, females regularly followed

it, refusing to lift items, which they considered

too heavy. They were never disciplined for their

refusals. Indeed, whenever a woman grocery clerk

found an item too heavy to lift, she’d call for

assistance (normally a male would do this), and

help would be provided.

back with this restriction. CONKLE informed SANDRA

TWOHY ("TWOHY'"), Business Representative for the

UNION, of this understanding. TWOHY talked to

SULINNA and reported to CONKLE that the latter had

"sold" the business to JADELIN, a corporation wholly

owned by her children, (JADE and BALDWIN), and

intended to lay off all UNION employees by December 28,

1992. LOCAL 1179 believed the "sale" was, in effect, a

repudiation of the CBA.

The UNION filed a grievance under the CBA

and encouraged CONKLE and others to strike against

LAIRD’S. CONKLE was a leader in this effort and, as a

result, attracted the enmity of the JEONG family. And, she

was the one, who persuaded her fellow strikers to "hang in

there", despite actions by the UNION hierarchy to undermine

their efforts. In connection with the latter, she exposed half-

truths and foot-dragging by the leaders of LOCAL 1179, and

this, in turn, brought on the intense dislike of the hierarchy

of the UNION. Unfortunately for her, this UNION had a

long history of "rewarding their friends and punishing their

enemies". And by the end of the strike, CONKLE was

clearly an "enemy" as far as PHIL CARNEY ("CARNEY'"),

the then President of LOCAL 1179, TWOHY and the other

officers were concerned.

By March 8, 1992, CONKLE’s efforts and

those of her fellow strikers forced BALDWIN to agree to

begin negotiations for a CBA covering JADELIN (in addition

to the proprietorship operated by SULINNA, which was

already covered by a CBA). Before negotiations began,

TWOHY told CONKLE that BALDWIN wanted everyone

back but her, and she added she wished she didn’t have to

even negotiate on CONKLE’s behalf.”

On March 9, 1992, a full day before LOCAL

1179 was to open negotiations on the CBA, TWOHY told the

UNION Executive Board that CONKLE wouldn’t be coming

back, because she’d been out on disability and could not lift

more than 25 pounds.?

There was no way TWOHY could know that

to be a fact, unless the UNION hierarchy had independently

reached their own conclusion on that particular point. This

is so, because there is no evidence that there was any

discussion between the UNION leaders and BALDWIN or

any other of the Employers about this issue until after the

new CBA was negotiated and, in fact, signed.

Negotiations between CARNEY, TWOHY and

BALDWIN (for the Employers) began on March 10 at the

UNION Hall. BALDWIN did initially ask about not taking

CONKLE back, but, when the UNION refused his request to

exclude her because of her activities during the strike,

BALDWIN simply agreed to whatever terms the UNION

proposed. So, the "negotiations" were completed and a

formal CBA was signed on that single day. After the CBA

was finalized, TWOHY for the first time, (and then

CARNEY) told BALDWIN to require CONKLE to provide

, Indeed, on March 10, when TWOHY told CONKLE

and others that the strike was over, she couldn’t

resist a final dig at CONKLE, saying "negotiations

would have gone a lot quicker without you".

> This fact was described by CONKLE in both

her Briefs and on oral argument as the “smoking

gun" in this case,

a “full medical release", before he let her come back to

work. They knew full well that CONKLE couldn’t get such

a release for unlimited lifting from her doctors, and this was

simply a "device" to bar her from returning.

On March 11, 1992, BALDWIN followed

their direction and told CONKLE he wanted a "full medical

release" from her, before she could come back. She asked

for a written description of the duties he had in mind for her,

and he listed, among other things, "lifting boxes up to 50

lbs., stocking shelves, walking or standing for periods of

about 2 hours at a time". CONKLE called TWOHY about

these new requirements, and she told her "BALDWIN can

require you to do whatever work he called for". A later call

to CARNEY elicited the comment "that stupid kid . . sure,

he’ll modify your job". CONKLE sought an appropriate

medical release from Dr. SLAUSON, her physician, who

opined she could do any work, which did not require

prolonged bending, stooping or squatting, but she could not

lift articles weighing more than 25 lbs. With these

"restrictions", CONKLE could easily have done the work of

a grocery checker at LAIRD’S.‘

But, based on Dr. SLAUSON’s report,

BALDWIN (and after further consultation with the UNION

about it) refused to rehire CONKLE. She then wrote the

UNION, asking for its help, and so did her Workers’

Compensation Lawyer. On March 25, CONKLE called

asking for CARNEY, and TWOHY returned the call, saying

"it’s up to you now . . . we’re washing our hands of it”.

4. See footnote 1 above.

CONKLE immediateiy sought other

employment and there was _ considerable interest from

Safeway for her to take a booth person’s job (duties included

balancing cash drawers, getting change for checkers, etc.).

She was certainly qualified, and the Store Manager told her

she was all but hired. He sent her to the local HR office for

employment formalities (e.g., drug test, etc.). After she

gave LAIRD’S as a reference, she never heard back on the

job. She called the Safeway HR person, and the latter gave

CONKLE a patently false reason for not putting her on.

Becoming suspicious, she had 2 separate people call and talk

to LAIRD’S seeking employment verification. BALDWIN

told both of them seriously derogatory (and untrue) facts

about CONKLE. Though she has sought employment, she

has not since been able to locate work in the grocery

industry, where she worked for most of her adult life. She

is entitled on these facts, to her day in Court on these claims.

H. A direct and concise argument amplifying the

rea ied on for allowa Writ.

l. By ignoring the fact that the UNION

knew CONKLE couldn’t lift more than

25 pounds when Union Officers

"suggested" to the Employers that they

require her to provide a full medical

release before returning to work, the

Opinion misapplies the standard for

"arbitrariness" established by this

Court and as applied by other Courts

of Appeal.

In holding that the UNION did not act

arbitrarily toward CONKLE, when it gratuitously

"suggested" to the Employers that she obtain a "full medical

release" before she could come back to work at LAIRD’S,

the Opinion overlooks the critical fact that the UNION knew

CONKLE couldn’t comply with that condition, when they

suggested it. The Opinion passes this "suggestion" off as

merely affording an honest and full response to an inquiry by

the Employers (Opinion ("Op."), (73 F.3d at 916) (Appendix

("A"), page 34 ("A-34")). But, this concept ignores the

admonition of Airline Pilots Assn. v. O’Neill, 499 U.S. 65,

74, 113 L.Ed.2d 511, 111 S.Ct. 1127 (1991) that the DFR

is like a duty owed by fiduciaries to their beneficiaries (e.g.,

as the duty owed by a trustee to trust beneficiaries or an

attorney to a client). What trustee could, with impunity

make a "suggestion" like the one the UNION did here,

knowing at the time it was made, that it would severely and

adversely affect a beneficiary of that trust? The Opinion also

conflicts with Aguinga v. United Food & Com. Workers

Inter. (CA 10, 1993) 933 F.2d 1453, 1471, cert den. 114

S.Ct. 880 (1993), which found a union’s conduct to be

arbitrary (within the definition given in Airline Pilots Assn.

vy. O’Neill, supra), where it failed to protect the members’

interests (i.e., allowed employer to close a union plant

knowing it intended to reopen as non-union and failed to take

steps to grieve this action), bartered away the members’

means of protecting themselves (i.e., entered into side letters

releasing all the members’ claims, concealed those letters,

filed unfair labor charges and privately withdrew them) and

left the members without representation. To the same effect

is Bennett v. Local Union No. 66 (CA 7, 1992) 958 F.2d

1429, 1437, which upheld a jury verdict finding the union

acted arbitrarily and in breach of DFR, where the union

President signed plaintiff employee’s Union card on the 31st

day of her employment (after a 30 day probation period),

welcomed her into the union, invited her to come to monthly

union meetings (she did attend one), assured her that the

probationary period for some new employees would not be

extended to 60 days, and then agreed with the employer to

a retroactive extension of the probationary period for the

plaintiff, during which time she was fired.

At the very least, CONKLE’s evidence raised

triable issues of material fact on the issue of the arbitrary

actions of the UNION in breach of the DFR. In early

December, 1991, TWOHY learned from CONKLE that she

would be returning to work with a doctor imposed weight

limit (for lifting) of 25 pounds. Then followed her stormy

relations with the UNION hierarchy as a result of her

exposures of UNION shortcomings during the strike, and

TWOHY’s statement to CONKLE before negotiations began

that she would prefer not te negotiate for her at all. Add to

this, TWOHY’s statement to the Executive Board of the

UNION on the day before negotiations were to begin with

BALDWIN for the Employers that CONKLE wouldn’t be

back, because she had been out on disability and could not

lift more than 25 pounds and you see why this is the

“smoking gun" here. The timing of this statement clearly

reflects an intent by the UNION hierarchy to phase

CONKLE "out" at LAIRD’S, as soon as they got the chance

to do so. When BALDWIN capitulated completely the next

day, signing the CBA that LOCAL 1179 proffered to him,

TWOHY saw her chance and first brought up the "full

medical release" issue with him. And, he took the ball and

ran with it. The UNION’s involvement didn’t end there, it

having continued to advise BALDWIN on this release (i.e.,

on whether CONKLE’s release was adequate, etc.), until

CONKLE was finally forced and forever from any possibility

of re-employment at LAIRD’S. Together, these facts create

a triable issue as to the "arbitrariness" of the UNION’s

conduct toward CONKLE, which requires a hearing on this

Petition.

Though Early v. Eastern Transfer (CA 1,

1983) 699 F.2d 522, 557, cert den 464 U.S. 824 (1983),

cited by the Opinion (Op. 916) (A-34), does permit a union

representative to decline to put forth an interpretation of a

CBA, which he and the union reasonably believe is incorrect,

that is not authority for the proposition that a representative

can gratuitously speak to an employer knowing that doing so

will directly and adversely affect the job prospects of a

member. Indeed, the Court totaliy failed to consider the

very reasonable option available to LOCAL 1179’s

representatives of simply refusing to provide advice at all in

this situation. By speaking, when TWOHY shouid have

required BALDWIN to seek his own counsel, the UNION

breached the DFR, which necessitates a hearing on this

Petition.

2. The Opinion ignores’ both the

requirement that on Summary

Judgment all inferences are to be

drawn in favor of the responding party

and Petitioner’s crucial "smoking gun"

evidence showing the “suggeted" work

Pe ee kien ee are)

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ih DRS ran itnde Reins CARA witha hdet wd abi tattle 2D

restriction was meerly a "device" to

exclude her from employment, which

together create triable issues, and,

therefore, it con-flicts with decisions

of this Court and other Courts of

Appeal.

The Court of Appeal is required to review de

novo the grant of a Summary Judgment below. Cal. Arch.

Bidg. Prod. v. Franciscan Ceramics (CA9, 1987) 818 F.2d

1466, 1468. Under Rule 56(c) of the Federal Rules of Civil

Procedure ("FRCP"), Summary Judgment is appropriate,

only if the pleadings and supporting materials show that there

is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of Law.

Where there has been full discovery in the case, to withstand

a motion for Summary Judgment, the non-moving party must

show that there are genuine factual issues that properly can

be resolved only by a finder of fact, because they may

reasonably be resolved in favor of either party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505,

91 L.Ed.2d 202 (1986). The substantive law is what

determines, which facts are material. Only disputes over

facts that might affect the outcome of the suit under the

governing Law will properly preclude entry of Summary

Judgment. id.

In ruling on Summary Judgment motions, the

trial judge’s function is not himself to weigh the evidence

and determine the truth of the matter. His role is to

determine, only whether there is a triable issue for trial. id.

Thus, the Anderson Court stated id. (at 477 U.S. 252):

"Progressing to the specific facts in this case,

we are convinced that the inquiry involved in

a ruling on a motion for summary judgment

or for a directed verdict necessarily implicates

the substantive evidentiary standard of proof

that would apply at the trial on the merits. If

the defendant in a run-of-the-mill civil case

moves for summary judgment or for a

directed verdict based on the lack of proof of

a material fact, the judge must ask himself not

whether he thinks the evidence unmistakably

favors one side or the other but whether a

fair-minded jury could return a verdict for the

plaintiff on the evidence presented. The mere

existence of a scintilla of evidence in support

of the plaintiff's position will be insufficient;

there must be evidence on which the jury

could reasonably find for the plaintiff. The

judge’s inquiry, therefore, unavoidably asks

whether reasonable jurors could find by a

preponderance of the evidence that the

plaintiff is entitled to a verdict -- "whether

there is [evidence] upon which a jury can

properly proceed to find a verdict for the

party producing it, upon whom the onus of

proof is imposed’".

The evidence of the non-moving party must be believed, and

all justifiable inferences are to be drawn in his favor. (id.,

477 U.S. at 255). The Anderson Court went out of its way

to state that its holding does not denigrate the role of the jury

and by no means authorizes trial by affidavits. On the

contrary, credibility determinations, the weighing of the

evidence and drawing of legitimate inferences from the facts

are all jury functions - not those of the judge. (id., 477 U.S.

255).

The Opinion, here, insofar as it finds that

CONKLE provided "no evidence" to show bad faith or

personal animus toward her by the UNION motivated the

"suggestion" of the rehiring condition as to lifting up to 50

pounds, overlooks critical points of fact that show, with other

facts, that the UNION hierarchy had decided before the

negotiations for the CBA even began that CONKLE wasn’t

going to go back to work at LAIRD’S and the requirement

of a "full medical release" was just a device to accomplish

that end. |

The DFR includes, among other things, the

obligation on the part of the UNION not to engage in

conduct toward a member, which is in bad faith. Vaca v.

Sipes 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842

(1967). To determine, if bad faith is involved, the Ninth

Circuit itself will look at the totality of the circumstances.

Banks v. Bethlehem Steel Corp. (CA 9, 1989) 870 F.2d

1438, 1444. The Court there, reviewing the evidence

produced by the plaintiff as to which the Court found to

create a triable issue of fact, outlined the following (870 F.2d

at 1445):

"Standing alone, Banks’ (the claimant’s)*

disagreement with Hughes (the Union Rep.)*

over the handling of his grievance would not

constitute evidence of bad faith. Nor would a

bare allegation of Hughes’ ulterior motive

withstand a motion for summary judgment.

Viewed together with Banks’ other allegations

and evidence in the record regarding

disagreement within the Union, the merits of

his claim, the small amount acquired in

settlement by Hughes, and Hughes’ refusal to

accept the assistance of Banks’ attorney,

Banks’ allegations take on more weight.

Because of the posture of this case, we must

view this evidence in the light most favorable

to Banks and consider whether there is a

genuine issue of material fact. Banks has

raised a genuine issue of material fact as to

whether Hughes exercised his discretion with

‘complete good faith and honesty of purpose,’

Huffman, 345 U.S. at 338, 73 S. Ct. at 686°.

Therefore, the issue should not be resolved at

the summary Judgment stage. (added*)

To the same effect is Bennett v. Local Union No. 66, (CA7,

1989), supra, which, after reviewing the possible conflicting

interpretations of the circumstantial evidence, upheld a Court

Judgment finding the Union acted in a deceitful scheme (i.e.,

for internal union political reasons) to deprive the member of

her protected status under the CBA as a bad faith breach of

the DFR. Aguinga v. United Food & Chemical Workers

Intl., (CA10, 1993) supra, is another example, where all

> Ford Motor Co. v. Huffman, 345 U.S. 330,

338, 73 S.Ct. 681, 97 L.Ed. 1048 (1953).

Sree 6 ire ee FO

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AR sis cle eh A Le ile Poms 6 EEA! MA

circumstances were considered to uphold a jury verdict

finding a bad faith breach of the DFR.

The circumstances here, taken together, are

certainly sufficient to create a triable issue on the bad faith

of the UNION in "suggesting" that BALDWIN require

CONKLE to get a "full medical release" before allowing her

to return to work. There was deep seated animosity by

TWOHY and CARNEY toward CONKLE that stemmed

from her conduct of the strike, which labeled the latter an

"enemy". There is also a long history of retaliation by the

particular UNION against "enemies" of the LOCAL 1179

leadership (i.e., "reward your friends and punish your

enemies"). TWOHY knew full well (from early December,

1991, on at least) that CONKLE was limited to lifting no

more than 25 pounds by her Workers’ Compensation doctors.

And, TWOHY told the UNION Executive Board members

on March 9, the day before discussions began with

BALDWIN for a new CBA, that CONKLE wouldn’t be

coming back because of her inability to lift more than 25

pounds. There was no way for her to know that, unless

there had been discussions on this subject among the UNION

hierarchy (because, by the record, BALDWIN had no

discussions about this aspect until the next day, after the new

CBA was fully negotiated and signed). Only after the CBA

was fully signed BALDWIN asked, in effect, "whether he

had to leave a place open for CONKLE". The only

reasonable option available to the UNION, consistent with its

fiduciary relationship to CONKLE was to "duck that issue"

and have BALDWIN get that answer from his own counsel.

Notwithstanding that reality, TWOHY "suggested" that he

require CONKLE to get a "full medical release", before

she’d be allowed to return to work (knowing full well, at that

point, that she could not get such). The UNION continued

to advise BALDWIN on the merits of the medical release

that CONKLE did obtain and what to do about this. The

only reasonable inference from this evidence that the

"suggested" full medical release was merely a "device"

employed by TWOHY and CARNEY to eliminate CONKLE,

the "enemy", from employment at LAIRD’S. There is, thus,

a further triable issue, which necessitates hearing and/or by

this Court on this Petition.

3. A hearing on this Petition should also

open the Summary Judgment that was

granted in favor of the Employers on

the Section 301 claims against them,

since the latter was granted solely

because of failure of the DFR claims

against the Union.

The Opinion (Op. 916-17) (A-36 and 37)

correctly points out that where the employee is unable to

make out a DFR case against the UNION, the action against

the employer is similarly barred. Schlacter-Jones v.

Tel. (CA 9, 1991) 936 F.2d 435, 442-43. That was the only

basis for sustaining the Judgment in favor of the Employers

(Op. 916-17) (A-37). It follows, therefore, that, if the

Judgment for the UNION is reversed, so also must be that

for the Employers. This aspect should also be considered on

hearing of this Petition.

4. In affirming the decision of the

District Court to artificially restrict

CONKLE’s discovery on pendent state

tort claims against the Employers and

then to grant Summary Judgment

against her for lack of sufficient

evidence on their claims, the Court of

Appeals misapplies recent decisions of

this Court and other Courts of Appeal,

as to the quantum of evidence, which

a responding party must present to

create tangible issues. And, ruling at

all, violated past directives of this

Court to dismiss the State claims in

such circumstances.

This affirmance basically cuts off CONKLE’s

"due process" rights and conflicts with decisions of this

Court and of other Circuits. The Ninth Circuit decisions

applying the 7th Amendment concepts mandate that a lesser

standard (e.g., "some evidence") be enough to raise triable

issues of fact, where discovery has been circumscribed by

the Trial Court. Perez v. Curcio (CA 9, 1988) 841 F.2d

255, 258. Sischo-Nownejad v. Merced Community College

Dist. (CA 9, 1991) 934 F.2d 1104, 1110-13.

This Court in Anderson vy. Liberty Lobby Inc.,

477 US 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202

(1986) went out of its way to emphasize that the “new rules”

on Summary Judgment annunciated therein do not denigrate

the role of the jury and by no means authorize trial by

affidavit. On the contrary, credibility determinations, the

weighing of evidence and the drawing of legitimate

interference from the facts are all jury functions - not those

of the Judge. (id, 477 US at 255). And, these new "rules"

governing Summary Judgment apply only, where the non-

moving party has had ample opportunity for discovery. (id,

477 US at 250, fn 5, and 477 US at 257). Celotex v.

Catrett, 477 US 317, 326, 91 L.Ed.2d 265, 106 S.Ct. 2548

(1986), is to the same effect.

There is a serious issue as to CONKLE’s

inability to make discovery here. The District Court’s oral

order at Status Conference in November, 1993, limited the

parties to depositions of plaintiff, SULINNA, BALDWIN,

CARNEY, TWOHY, and UNION Executive Board Members

BARBARA CARPENTER, KAREN ELWOOD and SANDY

KAZA. CONKLE disclosed some 27 other persons,

including BRUCE WILLIAMS and CHRIS LEWIS (Safeway

employees involved in interviewing CONKLE, when she

sought alternate employment, after BALDWIN refused to

rehire her after the strike). She sought leave to depose, at

least, the Safeway witnesses by specific requests in her

Memorandum in Response to the employers’ Summary

Judgment Motion, by her Declaration in Support thereof, by

the Declaration of her attorney and by her Statement of

Uncontroverted and Controverted Facts and, by declaration,

identified the relevant information and issues as to which

their evidence would appiy. These requests were supported

by specific reference to Rule 56(f) of the FRCP. This is

sufficient to invoke the exercise of discretion by the District

Court. Garrett v. City and County of San Francisco (CA 9,

1987) 818 F.2d 1515, 1518. Refusal to either allow

depositions or continue the Summary Judgment hearing at

ae ee every nce hie

least, gives rise to a lesser standard on CONKLE'’s part to

produce "some evidence" as sufficient to raise triable issues.

Notwithstanding these authorities, the Opinion

found CONKLE had offered no evidence of an expected job

at SAFEWAY or elsewhere or of any conversation between

JEONG and any prospective employer (Op. 918) (A-40).

Under California Law, the injured party in an intentional

interference case is not even required to mention by name the

third party. Identification in some manner is sufficient.

Ramona Mannor Convalescent Hospital v. Care Enterprises

(1986) 177 C.A.3d 1120, 1133, 255 C.R. 120. CONKLE

went far beyond these requirements by identifying Safeway,

and, by declaration, showed the potential job (as booth

person) and her Manager’s statement that she all but had the

job. The fact that this "evaporated", after she gave

LAIRD’S as a reference and called Safeway about it,

receiving a patently false reason from the HR person for not

putting her on creates an inference that BALDWIN had

something to do with this result. And, CONKLE even went

beyond that by having two (2) separate people call LAIRD’S

seeking "employment verification". BALDWIN told both

seriously derogatory (and untrue) facts about CONKLE.

Together, these facts create a fair inference that BALDWIN

told much the same tale to Safeway HR, when he was

approached by them to verify CONKLE’s employment. That

certainly qualifies as "some evidence" to raise triable issues

of fact to defeat the Summary Judgment here and to support

a hearing on this Petition.

In any event, it has long been the rule that,

where a Federal Court dismisses Federal claims on the merits

by Summary Judgment, it should refuse to exercise pendent

jurisdiction (to determine State Law issues as an incident to

adjudication of a federal question) over non-federal claims.

United Mine Workers v. Gibbs, 383 US 715, 726-27, 16

LEd 2d 218, 86 S.Ct. 1130 (1966). This principle is based

both on concepts of comity and to promote justice between

the parties by procuring for them a surer-footed reading of

applicable law. Merry v. Coast Community College District

(1979) 97 C.A.3d 214, 22-23, 158 C.R. 603.

In addition to these ordinary considerations,

the District Court (and Court of Appeals) here had special

reasons to dismiss and/or require dismissal, rather than rule

on, CONKLE’s state claims. As above, the District Court

allowed only limited discovery on critical issues and was,

therefore, on shaky ground in applying the Anderson and

Celotex principles to even the Federal claims. Equally, the

fact that CONKLE requested Summary Judgment be deferred

(to permit depositions of, among others, the SAFEWAY

personnel and was entitled to that delay under Rule 56(f) of

the FRCP), to not only deny the request for additional

discovery, but also then rule adversely on CONKLE’s State

Law claims for lack of evidence flies in the face of both the

Constitutional Guaranties of the right to jury trial of the 7th

Amendment and the directions of this Court as set forth in

Gibbs. For this additional reason, hearing should be allowed

on this important constitutional issue.

whe ci Alenia, Pico

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aa ries 144) _e

NCLUSION

WHEREFORE, CONKLE respectfully prays that this

Court issue its Writ of Certiorari and set this matter

forthwith for hearing.

DATED: May 3, 1996.

HOOY & HOOY

A Professional Law Corporation

By ae

WILLIAM J. HOON, Tuorecy for

Petitioner SHEILA CONKLE

APPENDIX - 1

Sheila CONKLE, Plaintiff,

Vv.

Sulinna JEONG, dba Laird’s Food Market,

Baldwin Jeong, Jadelin Enterprises, a

corporation, dba Laird’s Food Market,

United Food and Commercial Workers’

Union, Local 1179 AFL-CIO, Defendants.

No. C-93-2443 VRW.

Cite as 853 F. Supp. 1160 (N.D.Cal. 1994)

United States District Court, N.D. California.

May 2, 1994.

ORDER GRANTING SUMMARY JUDGMENT FOR

DEFENDANTS ON ALL CLAIMS FOR RELIEF.

WALKER, District Judge.

Plaintiff Sheila Conkle ("Conkle") began working at

Laird’s Market ("Laird’s") on September 30, 1976. After

completing her (1162) probationary period at Laird’s, she

became a member of the United Food and Commercial

Workers Union, Local 1179 ("Local 1179"). Conkle’s

principal job duties were to work in the liquor store section

of Laird’s, which included checking groceries for customers.

In October, 1992, Conkle experienced a "quick and

fleeting” pain in her back while lifting something at work.

She reported the pain to Sulinna Jeong, on of the owners of

Laird’s, who told her to file any workers compensation claim

within three days. Conkle decided not to file a claim at that

time because she believed that she would be able to handie

her job without further problems.

On November 5, 1991, Conkle was lifting a case of

liquor from the floor to a shelf above her head when she

suddenly felt a pain "like somebody had taken an ice pick

and shoved it in [her] lower back." As a result of her

injury, Conkle was unable to walk without experiencing pain

in her back. Her supervisor, Baldwin Jeong, released her to

go see her family practitioner, Dr. Dana Slauson. Dr.

Slauson allowed Conkle to return to work on condition that

she refrain from lifting.

On November 8, 1991, Sulinna Jeong decided that

Conkle should not continue to work if she was unable to lift.

Conkle did not complain to any union representative about

the fact that Sulinna Jeong was not permitting her to work.

November 8, 1991, was the last day that Conkle actually

"worked" for Laird’s.

On December 9, 1992, Conkle received a call from

her worker’s compensation lawyer, Gary Snyder. Mr.

Snyder stated that Sulinna Jeong had agreed that Conkle

would return to work with a 25 pound weight lifting limit.

Although Conkle had not yet received a doctor’s medical

release stating that she could return to work at this time, she

A-2

assumed that she could go back to work as a grocery checker

with no modification of duties.

On December 18, 1992, Sandra Twohy ("Twohy"),

a Local 1179 representative, called Conkle to tell her that

Laird’s had been sold, and that all union employees would be

laid off by December 28, 1992. Local 1179 questions the

"sale" of Laird’s because Sulinna Jeong had "sold" Laird’s

to Jadelin Corporation, a California corporation formed

between her children, Baldwin and Jade Jeong, for the sole

purpose of purchasing Laird’s. Local 1179 believed that the

"sale" was, in effect, a repudiation of the collective

bargaining agreement between Laird’s and Local 1179.

In response to the alleged repudiation of the union

contract, Local 1179 filed a grievance under its collective

bargaining agreement with Laird’s to prevent the termination

of Laird’s union employees. Local 1179, through attorney

David Rosenfeld, demanded that Laird’s arbitrate Local

1179’s grievance and threatened to compel arbitration

through a federal court action. Moreover, on March 5,

1993, Local 1179 filed an unfair labor practice charge with

the National Labor Relations Board, alleging that Laird’s had

refused to bargain with Local 1179 and had discriminated

against its union employees.

Laird’s refused to submit the grievance to arbitration.

The union members at Laird’s feared that they would

permanently lose their jobs. Specifically, Conkle was

concerned that Laird’s would not recognize the union

contract. Consequently, Local 1179 began picketing on

February 16, 1993. The object of the picketers was to return

to their jobs under the same union contract that was in effect

before the dispute. Picketing continued for a total of

seventeen days.

On March 10, 1993, Local 1179 settled its labor

dispute with Laird’s new owner, Baldwin Jeong. He agreed

to be bound ® the 1992-1995 Master Food Agreement and,

in return, Local 1179 waived its claims for back pay for the

period of December 28, 1992 through March 10, 1993.

Additionally, Local 1179 agreed to withdraw all pending

grievances and withdraw the unfair labor practice charge

filed with the National Labor Relations Board.

At the outset of the negotiations, Baldwin Jeong made

it clear the he was reluctant to put Conkle back to work.

Local 1179 representatives, Philip Carney ("Carney") and

Twohy, told Baldwin Jeong that he would (1163) have to put

Conkle back to work, so long as she provide a full medical

release.

On March 11, 1993, Conkle met with Baldwin Jeong.

At the meeting, he gave her a written job description which

required that she be able to lift boxes up to 50 pounds, stock

shelves, and stand for a period of two hours at a time.

On March 19, 1993, Conkle obtained a "qualified"

medical release from Dr. Slauson. The release states that

Conkle is able to do any work "which does not require

prolonged bending, stooping or squatting." Moreover,

Conkle "is able to lift articles up to [twenty-five pounds] if

she is not required to bend over to lift them." The release

further provides that Conkle "should not stand without

A-4

moving for longer than an hour in any 4 hour period."

Conkle admits that she was surprised to learn that Dr.

Slauson had restricted her from standing for longer than one

hour in a four hour period. Prior to receiving Dr. Slauson’s

release, Conkle has been under the impression that she could

stand for longer than one hour within a four hour period.

By letter dated March 21, 1993, Conkle informed

Local 1179 that Baldwin Jeong had written her a note stating:

‘because of [Conkle’s] past and present medical conditions,

[she] did not meet the requirements of employment at his

firm.” Conkle requested Local 1179 to "please advise [her]

of the union position on this matter A.S.A.P." By letter

dated March 24, 1993, Conkle’s attorney questioned: "what,

if any thing, local 1179 intend[ed] to do in response to Sheila

Conkle’s [sic] of 3/21/93 in response to the discriminatory

practices of Laird’s Food Markets.”

On March 30, 1993, Local 1179’s counsel responded

with a letter stating: "Ms. Conkle’s medical certificates

indicate she cannot perform the duties required her. There

is no basis to conclude that the employer’s job requirements

are inappropriate, unrelated to the actual duties or applied

discriminatorily. Moreover, it does not appear that even

with reasonable accommodation, Ms. Conkle could perform

the essential duties of the job." The letter concluded as

follows: "If there is further information which would cause

the Union to re-evaluate its position, please bring it to our

attention. Otherwise, the Union is not in a position to

proceed further in this matter.”

Neither Conkle nor her attorney responded to Local

1179’s letter of March 30, 1993. In fact, the next time

Local 1179 heard from Conkle was June 30, 1993, the date

this action was filed. !

Conkle’s complaint includes three claims for relief:

(1) a § 301 claim against both her union, Local 1179 (for

breach of its statutory duty of fair representation), and her

employer, Laird’s Food (for termination without "just cause"

in violation of the collective bargaining agreement); (2)

Slander against Baldwin Jeong; and (3) _ intentional

interference with prospective economic advantage against

Baldwin Jeong.

Defendant’s now move for summary judgment

pursuant to FRCP 56 on each cause of action. Having

reviewed the papers submitted and the arguments of counsel

at the hearing on April 15, 1994, the court hereby: (1)

GRANTS defendant’s motion on count one for violation of

§ 301 of the Labor Management Relations Act; (2) GRANTS

defendant Baldwin Jeong’s motion on count two for slander;

and (3) GRANTS defendant Baldwin Jeong’s motion on

‘Although Conkle contends that there are additional facts

relevant to this action, there is no substantial dispute with

respect to the foregoing fact. Nevertheless, in instances in

which Conkle’s additional facts are relevant to the arguments

discussed, the court has fully addressed and considered such

facts in ruling on defendant’s motion for summary judgment.

count three for intentional interference with prospective

economic advantage.

Summary judgment is appropriate when there is no

genuine issue as to any material fact and the moving party is

entitled to judgment as a matter of law. FRCP 56; British

Airways Board v. Boeing, Co., 585.2d 946, 951 (9th

Cir.1978). The burden on the non-moving party is as

follows:

When a motion for summary judgment is made and

supported a provided in this (1164) rule, an adverse

party may not rest upon the mere allegations or

denials of the adverse party’s pleading, but the

adverse party’s response, by affidavit or otherwise

provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial. If the

adverse party does not so respond, summary

judgement, if appropriate, shall be entered against the

adverse party.

FRCP 56(e).

If defendant is the moving party, he sustains his

burden by demonstrating "that there is an absence of

evidence to support the non-moving party’s case." Celotex

v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91

L.Ed.2d 265 (1986). Once the moving party makes such a

showing, the burden shifts to the non-moving party to go

beyond the pleadings and "designate specific facts showing

the there is a genuine issue for trial." Jd at 324, 106 S.Ct.

at 2553. The non-moving party must do more "than simply

A-7

show that there is some metaphysical doubt as to material

facts * * *." Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89

L.Ed.2d 538 (1986) (citation omitted). "Where the record

taken as a whole could not lead a rational trier of fact to find

for the non-moving party, there is no ‘genuine issue for

trial’" and summary judgment is proper. /d.

In count one of her complaint’, Conkle alleges that

the union breached its statutory duty of fair representation

during the labor dispute of December 24, 1992 through

March 10, 1993, by not doing enough to support her and her

fellow union members. Specifically, Conkle complains that

Local 1179 should have: (1) provided paid picketers; (2)

publicized the dispute more widely: (3) provided higher-

quality picket signs; (4) had its business agents spend more

time on the picket line; and (5) allowed picketers to air their

complaints before the Union’s Executive Board. Even

assuming that Local 1179 failed to provide or permit all of

the above, Local 1179 correctly states that "federal law does

not mandate how unions must allocate their resources in

labor disputes.”

? In count one of her complaint, Conkle alleges that

Local 1179 violated its statutory duty of fair representation

in a number of ways. Nevertheless, each factual allegation

is dealt with individually for purposes of clarity.

A-8

A union’s duty of fair representation is inferred from

the union’s exclusive authority under the National Labor

Relations act, 29 USC § 159(a), to represent all employees

in a bargaining unit. Chauffeurs, Teamsters & Helpers Local

No. 391 v. Terry, 494 S.S. 558, 563, 110 S.Ct. 1339, 1343,

108 L.Ed.2d 519 (1990). In Vaca v. Sipes, 386 U.S. 171,

87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the Supreme Court

defined the duty of fair representation:

[T]he exclusive agent’s statutory authority to

represent all members of a designated unit includes a

Statutory obligation to serve the interest of all

members without hostility or discrimination toward

any, to exercise its discretion with complete good

faith and honesty, and to avoid arbitrary conduct.

Id. at 177, 87 S.Ct. at 910. The union’s duty of fair

representation extends to its conduct in negotiating collective

bargaining agreements as well as in pursuing grievances on

behalf of individual employees. Bautista v. Pan American

World Airlines, Inc., 828 F.2d 546, 549 (9th Cir. 1987)

In the context of representing its members at the

bargaining table, a union must be allowed a "’wide range of

reasonableness’ because it must be able to focus on the needs

of it membership as a whole without undue fear of lawsuits

from individuals members disgruntled by the result of the

collective [bargaining] process.” Bautista, 828 F.2d at 549.

The union has the "discretion to make such concessions and

accept such advantages as, in the light of all relevant

considerations, [it] believe[s] will best serve the interests of

the parties represented." Ford Motor Co. v. Huffman, 345,

U.S. 330, 337-38, 73 S.Ct. 681, 686, 97 L.Ed. 1048 (1952).

The "complete satisfaction of all who are represented is

A-9

hardly to be expected." (1165) Huffman, 345 U.S. at 338,

73 S.Ct. at 686. Accordingly, a union breaches its statutory

duty of fair representation only when its conduct toward a

member of the collective bargaining unit is “arbitrary,

discriminatory or in bad faith." Vaca, 386, U.S. at 190, 87

S.Ct. at 916 (emphasis added).

In this case, Local 1179 took a number of steps in its

attempts to resolve the labor dispute with Laird’s. In

response to the repudiation of the union contract at Laird’s,

Local 1179 immediately filed a grievance under the collective

bargaining agreement with Laird’s to prevent the termination

of Laird’s union employees. Carney Declaration at ¢ 6 and

Exhibit C thereto. Subsequently, after receiving what it

considered inadequate responses from Laird’s, Local 1179,

through attorney Rosenfeld, demanded that Laird’s arbitrate

the union’s grievance and threatened to compel arbitration

through a federal court action. Rosenfeld Declaration at { 4

and Exhibit B thereto. Because Laird’s refused to submit the

Unions grievance to arbitration, the union began picketing

Laird’s on February 16, 1993. The picketing continued for

a total of seventeen days. On March 5, 1993, the union filed

an unfair labor practice charge with the National Labor

Relations Board alleging that Laird’s had refused to bargain

with the union and had discriminated against its union

employees.

On March 10, 1993, the union settled the labor

dispute with Laird’s. The new owners, Baldwin and Jade

Jeong, agreed to be bound by the 1992-1995 Master Food

Agreement, the same contract that had bound Laird’s before

the change in ownership. In her deposition, Conkle admitted

A-10

Wiican

that the application of this Master Food Agreement was

exactly for what the picketers were fighting.

Based on the above, the court finds that no reasonable

trier of fact could conclude that Local 1179's actions fell

outside the "wide range of reasonableness" afforded unions

in resolving labor disputes. Because Conkle has failed to

provide any evidence to demonstrate that there is a triable

issue of fact whether the union acted "arbitrarily,

discriminatorily or in bad faith" in resolving the labor

dispute, Local 1179’s motion for summary judgment on the

issue whether it violated its statutory duty of fair

representation by not doing enough to support Conkle and

her fellow members during the labor dispute is hereby

GRANTED.

Ill

In count one of her complaint, Conkle also alleges

that Local 1179 improperly withdrew all pending grievances

and improperly waived its claim for back pay for the ten

week of the labor dispute. Local 1179 argues that these

concessions were reasonable under the circumstances for

three reasons. First, the union faced a substantial risk of

defeat if it continued to fight for back pay as a term of the

labor dispute settlement. Second, even if the union would

have prevailed in a civil action to compel arbitration or a

National Labor Relations Board proceeding, the union

members would have faced "a probable delay of several

years before recovering any relief." Finally the unions

decision to waive back pay and ail pending grievances was

a strategic decision in light of the fact that it was "better to

A-11

resume a normal relationship with Laird’s under the union

contract than to drive the small market out of business

permanently.”

Based on the above, the court finds that the union has

sustained its burden of demonstration that no reasonable trier

of fact could conclude that Local 1179’s actions fell outside

the “wide range of reasonableness" afforded unions in

settling labor disputes and in negotiating collective bargaining

agreements. Consequently, Conkle was required to put forth

evidence creating a triable issue of fact whether Local 1179’s

actions were “arbitrary, discriminatory or in bad faith."

Conkle did not address this issue, much less sustain her

burden in response to the motion. Accordingly, Local

1179’s motion for summary judgment on plaintiff’s claim for

violation of the duty of fair representation with respect to the

labor dispute and the contract negotiation is hereby

GRANTED.’ (1166)

In count one of her complaint, Conkle also alleges

that Local 1179 violated its duty of fair representation by

"conniving with management to exclude her as an employee

at the market" by suggesting that Laird’s require a full

> Because Local 1179’s decision to withdraw all pending

grievances fell within the "wide range of reasonableness"

afforded unions in such circumstances, any claim Conkle had

against Laird’s prior to the settling of the labor dispute is

now moot.

A-12

eS ee eT eee 2k tee

medical release before permitting her to resume working.

Local 1179 argues, however, that its suggestion that Laird’s

require Conkle to provide a full medical release was

reasonable under the circumstances and, therefore, it is

entitled to judgment as a matter of law.

During the contract negotiations, Baldwin Jeong

initially displayed reluctance in putting Conkle back to work.

Nevertheless, Local 1179’s president, Philip Carney,

admonished Baldwin Jeong that "the negotiations would be

over right there unless all union members were taken back."

Carney declaration at ¢ 9 (emphasis added). Carney stated

that Baldwin Jeong "would have to put Conkle back to work,

so long as she provided a full medical release." Carney

Declaration at 49; Twohy Declaration at 44. Baldwin Jeong

found this acceptable. Accordingly, on march 10, 1993,

Local 1179 and Baldwin Jeong agreed that each would sign

the Master Food Agreement, effective March 1, 1993, and

reinstate all union employees, specifically Conkle, with full

seniority. Carney Declaration at {9 and Exhibit E thereto.

Based on the above, the court finds that no reasonable

trier of fact could conclude that Local 1179’s actions were

not reasonable under the circumstances. Conkle fails to

realize that Local 1179 is the exclusive bargaining

representative for all of its members, not just her. Local

1179’s primary goal was to secure a contract on behalf of the

union members as a group, not to worry about the specific

concerns of each individual member. When faced with the

reality that the negotiations would break down if Laird’s

refused to take Conkle back, Local 1179 proposed a viable

solution, thereby saving the negotiations. Because Local

A-13

1179’s actions were reasonable under the circumstances,

Conkle must provide evidence to create a triable issue of face

whether Local 1179 acted "arbitrarily, discriminatorily or in

bad faith."

In her attempt to demonstrate that Local 1179 acted

“arbitrarily, discriminatorily or in bad faith," Conkle makes

vague allegations that the "leadership of Local 1179 has long

been known to ‘reward their friends and punish their

enemies.’" Even assuming that this is true, it is irrelevant

with respect to whether Local 1179 acted "arbitrarily,

discriminatorily or in bad faith" toward her.

Conkle attempts to show that Local 1179 acted in

"bad faith" toward her by providing evidence that "on March

9, the day before the negotiation, [the union was informed]

that [Conkle] had been out on disability and could not lift 25

pounds and, therefore, couldn’t go back to work." Hooy

Declaration ¢ 13 and Exhibit I thereto. Nevertheless, Conkle

has merely demonstrated that Local 1179 was aware of the

fact that she had suffered a back injury which had restricted

her physical activity. Clearly, this was not the first time

Conkle’s back injury was brought to Local 1179’s attention,

as Conkle had been on leave for quite some time.

Moreover, Conkle has admitted that prior to her

injury, her job required the she lift cases of liquor "between

55 and 60 pounds." Anderson Declaration and Exhibit J

thereto. Because Local 1179 wanted to assure Baldwin Jeong

that Conkle could assume the same work responsibilities

upon returning to work, it recommended that Baldwin Jeong

require Conkle to provide a full medical release. The court

A-14

cannot perceive how a reasonable trier of fact could conclude

that such a recommendation’ Was discriminatory or in bad

faith toward Conkle.

Based on the above, the court concludes that Conkle

has failed to sustain her burden of demonstrating that there

is a triable issue of fact whether Local 1179 acted

“arbitrarily, discriminatorily or in bad faith" toward her.

Accordingly, Local 1179’s motion for summary judgment on

if the claim that it violated its statutory duty of fair

representation by suggesting that she obtain a "full medical

release" before returning to work is hereby GRANTED.

In count one on her complaint, Conkle also alleges a §301

claim against her employer (1167), Laird’s Foods, for

terminating her without "Just cause" in violation of the

Master Food Agreement. Additionally, Conkle alleges that

Local 1179 breached its statutory duty of fair representation

by failing to pursue her grievance against her employers

when her employers declined to put her back to work

because she was not physically able to perform her job.

‘ eT te Perens

An employee may bring a wrongful discharge action

ta under §301 of the Labor Management Relations Act against

ie his employer as the sole defendant, or he may also join his

union as a defendant by alleging that the union breached its

| duty of fair representation. Ness v. Safeway Stores, Inc.,

: 598 F.2d 558, 560 (9th Cir.1979). Nevertheless, to prevail

against either the company or the Union, a union member

must not only show that his discharge was contrary to the

collective bargaining agreement, but must also show that the

El inne RATES tI aah rr 8M

A-15

union violated its statutory duty of fair representation. Hines

v. Anchor Motor Frieght, 424 U.S. 554, 570-71, 96 S.Ct.

1048, 1059, 47 L.Ed.2d 231 (1976). Accordingly, the

threshold issue governing the liability of both parties on this

claim is whether the union’s conduct in handling Conkle’s

grievance was in breach of its statutory duty of fair

representation.

In the grievance context, a union breaches its

statutory duty of fair representation if it ignores a meritorious

grievance or processes it in a perfunctory manner. Vaca,

386 U.S. at 191, 87 S.Ct. at 917. Nevertheless, the union

is accorded great latitude in the handling of employee

grievances. Ness, 598 F.2d at 560. Unless the union

demonstrates a reckless disregard for the rights of the

individual employee in handling employee grievances, the

courts are hesitant to interfere with the union’s decision. Jd.

An employee who alleges a violation of the collective

bargaining agreement between his union and the employer,

must exhaust the grievance and arbitration procedures before

bringing suit under § 301. Republic Steel Corp. v. Maddox,

379 U.S. 650, 652-53, 85 S.Ct. 614, 616-17, 13 L.Ed.2d

580 (1965). In most instances, a failure to utilize the

grievance procedures, bars grievants from pursuing their

remedies in court. /d. at 652, 85 S.Ct. at 616.

In this case, Local 1179 contends that Conkle "never

filed any formal grievance required by section 18.2 of the

union contract, Ex.2 to Carney Dec., even though she had

her own copy of the contract, Conkle Dep. at 15:21-16:3,

and legal counsel to assist her." She merely had her attorney

A-16

inquire, by letter dated March 24, 1993, "what, it anything

Local 1179 intend[ed] to do * * * in response to the

discriminatory practices of Laird’s Food Markets." Carney

Declaration and Exhibit F thereto. On March 30, 1993,

Local 1179’s counsel responded with a letter stating: "[b]ased

on the facts known to the Union * * * it does not appear that

even with reasonable accommodation, Ms. Conkle could

perform the essential duties of the job." Carney Declaration

q 15 and Exhibit I thereto. Moreover, the letter specifically

stated that "[i]f there is further information which would

cause the Union to re-evaluate its position, please bring it to

our attention. Otherwise, the Union is not in a position to

proceed further in this matter." Id.

Even assuming that the March 24, 1993 letter from

Conkle’s counsel qualifies as a grievance, Conkle and her

counsel neither responded to Local 1179’s letter, nor

communicated with the union before filing suit. Local 1179

correctly states that "[t]he most basic principle of fair-

representation law is that a member may not boycott the

grievance procedure, and then complain that the union has

failed to vindicate her rights." See Republic Steel Corp. v.

Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.ed.2d

580 (1965). Local 1179 persuasively argues that conkle

should not be permitted to "hide the ball’ by refusing to give

{Local 1179] information establishing her grievance, and then

sue [Local 1179] for failing to uncover that information

independently."

Conkle contends that her failure to exhaust the

grievance and arbitration procedures is excused because it

would have been futile. Although an employee’s failure to

A-17 on

exhaust may be excused when "the union’s breach of [its]

duty of fair representation prevent/s] [the plaintiff] from"

doing so, Dutrisac v. Caterpillar Tractor Co., 749 F.2d

1270, 1274 (9th Cir 1983) (emphasis added), (1168) case law

makes it clear that the same does not apply here.

In an employee action against a union for breach of

its statutory duty of fair representation, plaintiffs alleged that

their failure to exhaust should be excused as futile because

the alleged past misconduct of union officials had

discouraged them from seeking the union’s assistance after

they were terminated. Garcia v. Hudson Lumber Co., 679

F.Supp. 961, 965 (N.D.Cal.1987). The court stated,

however, that past union misconduct does not excuse an

employee’s failure to exhaust the grievance and arbitration

procedures. /d. An employee’s failure to exhaust will be

excused only when the employee can show that the union’s

breach of its statutory duty of fair representation prevented

him from processing his grievance. Jd.

In this case, Conkle concedes her failure to exhaust

the grievance and arbitration process. She contends,

however, that her failure to exhaust is excused because it

would have been futile. Nevertheless, she has failed to

provide any evidence showing that there is a triable issue of

fact whether Local 1179 prevented her from pursuing the

grievance and arbitration process. Conkle has merely

demonstrated that she felt some animosity from various Local

1179 members and executives. Because this is insufficient

to excuse her failure to exhaust, the court concludes that

Conkle may not pursue her contractual remedies in this

court. Accordingly, Local 1179’s motion for summary

A-18

judgment on the claim that it violated its statutory duty of

fair representation by failing to pursue Conkle’s grievance is

hereby GRANTED.

Because a plaintiff cannot proceed against his

employer under § 301 without first establishing a breach of

the duty of fair representation by his union, defendant’s

motion for summary judgment on Conkle’s § 301 claim

against her employer is hereby GRANTED.

Vil

In her second claim for relief, Conkle alleges that

defendant Baldwin Jeong uttered false and unprivileged

publications regarding her to separate telephone callers who,

in consultation with Conkle, falsely identified themselves to

Baldwin Jeong as prospective employers of Conkle seeking

to verify her employment. Specifically, Conkle alleges that

Baldwin Jeong “uttered statements about [her] to third

parties, including prospective employers, to the effect:

(a) that while [Conkle] worked at the market she

acted like she thought she was management, knew

everything and was difficult as an employee; (b) that

{Conkle} led a strike against the market, but her own

Union turned against her because she was too radical;

[Conkle], some saying they would rather stand in

another cashier’s line for two hours, rather than be

A-19

waited on by [her]; (d) [sic] and that [Conkle] is

more trouble than she is worth."

Complaint 424. Baldwin Jeong argues that summary

judgment should be granted because the statements were: (1)

truthful; (2) statements of opinion; and (3) protected under

a qualified privilege. Although any one of these arguments

is dispositive, each is addressed below.

Slander is defined as "a false and unprivileged

publication," uttered orally, which tends directly to injure the

subject in respect to his office, profession, trade or business.

Cal.Civ.Code § 46 (West 1982). The truth of the statement

is a complete defense, "regardless of the bad faith or

malicious purpose of the publisher of the material."

Swaffield v. Universal Ecsco Corp., 271 Cal.App.2d 147, 76

Cal.Rptr. 680, 690 (1969).

In this case, it is undisputed that Conkle was never a

management employee at Laird’s, yet she admitted that she

performed management duties and acted accordingly.

Additionally, it is undisputed that Conkle lead the strike

against Laird’s and that she believes her own union turned

against her, as evidenced by her veritable potpourri of claims

against Local 1179 for breach of its duty of fair

representation. Conkle Deposition 536: 8-10. Finally, it is

undisputed that Laird’s received customer complaints

regarding Conkle. Declaration of Baldwin Jeong (1169) 410.

(1169) In fact, one customer stated that he "found Sheila

Conkle to be so unpleasant that when [he] went into the

store,{he] would go to another check-stand to avoid her."

Declaration of Baldwin Jeong 410 and Exhibit B thereto.

A-20

A ied eater?

Because Baldwin Jeong has sustained his burden of showing

that the above statements are true, the court concludes that

such statements are not actionable.

Furthermore, Baldwin Jeong contends that even is the

above statements are not true, the statements at issue are not

actionable because they are statements of opinion. The

essential inquiry in a defamation action is whether a

"reasonable fact finder could conclude that the published

statements imply a provably false factual assertion." Moyer

v. Amador Valley Joint Union High Schooi District, 225

Cal.App.3d 720,275 Cal.Rptr. 494, 497 (1990). The

determination of whether a statement implies a provably false

factual assertion is a question of law. Id.

For example, the statement that "Mr. Moyer (a

teacher) is * * * the worst teacher at FHS" was found to be

non-actionable opinion because it was not capable of being

proven true or false. Id. Additionally, the statement: "I

think someone is being bought on the Planning Commission,

otherwise, how could you explain a 3-3 vote at one meeting

on an issue and then at the very next meeting, a 6-1 vote?"

was found to be non-actionable opinion. Carr v. Warden,

159 Cal. App.3d 1166, 1168, 206 Cal.Rptr. 162, 163

(1984).

Applying the foregoing standard, the court concludes

as a matter law that Baldwin Joeng’s statements that Conkle

"acted like she thought she was management," "was too

radical," "was difficult as an employee,” and “is more

trouble than she is worth” are statements of opinion because

they do not imply a provably false factual assertion.

A-21

Accordingly, such statements are not actionable.

Finally, Baldwin Jeong contends that even if the

above statements are actionable either because they are false

or because they are statements of fact, the statements are not

actionable because each is protected by a qualified privilege.

California Civit Code § 47(c) provides in pertinent part: "A

privileged communication is one made * * * without malice,

to a person interested therein * * * by one who stands in

such relation to the person interested as to afford a

reasonable ground for supposing the motive for the

communication to be innocent, or * * * [by one] who is

requested by the person interested to give the information."

Cal.Civ.Code § 479c) (West 1984). Thus, where comments

are made by a former employer to a prospective employer

who requests information regarding the employee, the

communication is presumed to be privileged. Neal v. Gatlin,

35 Cal.App.3d 871, 877, 111 Cal.Rptr. 117 (1973).

Here, Baldwin Jeong’s statements were made to two

separate individuals who stated that they were prospective

employers calling to verify Conkle’s employment with

Laird’s and to request a candid appraisal of her job

performance. Because these statements are presumed to be

privileged, Conkle has the burden to prove that the

Statements were made with actual malice so as to defeat the

privilege. Williams v. Taylor, 129 Cal.App.3d 745, 752,

181 Cal.Rptr. 423 (1982). Specifically, Conkle must create

a triable issue of fact whether the statements were made with

actual malice, i.e., "a state of mind arising from hatred or

ill will, evidencing a willingness to vex, annoy, or injure

another person." Agarwal v. Johnson, 25 Cal.ed 932, 944,

A-22

160 Cal.Rptr. 141, 603 P.2d 58 (1979).

In her attempts to demonstrate that Baldwin Jeong

made the above statements with actual malice, Conkle states

that she "infers" malice from Baldwin Jeong’s statement to

Carney that he "didn’t want [her] back as an employee."

Nevertheless, this statement has no bearing on whether

Baldwin Jeong acted with "actual malice” when making the

Statements at issue with respect to Conkle’s claim for

slander. This merely demonstrates that Baldwin Jeong did

not want to take Conkle back. Although the law requires

employers to take employees back under such circumstances,

the law cannot compel employers to do so happily. (1170)

Moreover, Conkle argues that the substance of the

telephone conversations at issue demonstrates that Baldwin

Jeong acted with "actual malice." The court, however,

disagrees. The substance of the conversations does not

create a triable issue of fact whether Baldwin Jeong acted

with any "hatred or ill will" toward Conkle. The substance

of the conversations merely demonstrates that Baldwin Jeong

provided candid responses to the questions asked by the

callers; it shows nothing with respect to Baldwin Jeong’s

State of mind. Consequently, the court concludes that Conkle

has failed to provide evidence demonstrating that there is a

triable issue of fact whether Baldwin Jeong’s statements were

made with the “actual malice” necessary to overcome the

qualified privilege.

Based on the above, the court concludes that the

statements by Baldwin Jeong are not actionable because they

are either true or statements of opinion. Nevertheless, even

A- 23

assuming that the statements are actionable because they are

either false or statements of facts, the court finds that Conkle

has failed to create a triable of fact whether the statements

were made with actual malice. Accordingly, Baldwin

Jeong’s motion for summary judgment on the slander claim

is hereby GRANTED.

Vil

Conkle’s third claim for relief is for intentional

interference with prospective economic advantage.

Specifically, Conkle contends that Baldwin Jeong uttered

statements to "prospective employers * * * with intent to

prevent [her] from obtaining employment."

The elements of a ciaim for intentional interference

with prospective economic advantage are: "(1) an economic

relationship between the plaintiff and some third person

containing the probability of future economic benefit to the

plaintiff; (2) knowledge by the defendant of the existence of

the relationship; (3) intentional acts on the part of the

defendant designed to disrupt the relationship; (4) actual

disruption of the relationship; and (5) damages to the plaintiff

proximately caused by acts of the defendant." Blank v.

Kirwan, 39 Cal.3d 311, 330, 216 Cal.Rptr. 718, 703 P.2d

58 (1985).

In this case, Baldwin Jeong has sustained his burden

of demonstrating that there is an absence of evidence to

support Conkle’s claim for intentional interference with

prospective economic advantage. Conkle has not identified

any relationship between herself and a third party containing

A- 24

A at OO BG OLED AB tt lela BELA PARAS i Pa

a probability of future economic benefits. Conkle claims that

she had an expected job at Safeway. Nevertheless, she has

failed to provide any evidence on this issue; speculation is

not enough. Moreover, Conkle claims that her expected job

with Safeway “mysteriously evaporated," after Baldwin

Jeong provided false information about her in response to an

inquiry by Safeway. Conkle has failed to provide any

evidence that Safeway contacted Baldwin Jeong, much less

that he made disparaging remarks about her. Because

Conkle has failed to provide any evidence in support of her

claim for intentional interference with prospective economic

advantage, Baldwin Jeong’s motion for summary judgment

on this claim is hereby GRANTED.

IT IS SO ORDERED.

A- 25

APPENDIX - 2

Sheila CONKLE, Plaintiff-Appellant,

Sulinna JEONG, d/b/a Laird’s Food Market; Baldwin Jeong;

Local 1179, United Food and Commercial Workers

International, et al., Defendants-Appellees.

No. 94-16012.

Cite as 73 F.3d 909 (9th Cir. 1995)

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 15, 1995.

Decided Dec. 27, 1995.

Before: CHOY, WIGGINS, and LEAVY, Circuit Judges.

CHOY, Circuit Judge:

Appellant Sheila Conkle ("Conkle") appeals the

summary judgment for defendants in her action against her

former employers and union for breach of § 301 of the Labor

Management Relations Act, 29 U.S.C. § 185, for slander

and for intentional interference with prospective economic

advantage. We affirm.

A- 26

oD A ROR hi EN RE thaws da Sean Datal Some Se) ates SE ORD 4

eee ne a at A So deer ce

I. Factual and Procedural Background

Conkle began working at Laird’s Market ("Laird’s")

on September 30, 1976, and subsequently joined United Food

and Commercial Workers Union, Local 1179 ("Local 1179"

or "the union"). Conkle worked as a "liquor clerk" until

1990, when the union pressured Laird’s to reclassify her as

a higher-paid "grocery clerk." Her duties involved checking

groceries for customers and occasional light lifting. Conkle

alleges that Laird’s had an unwritten policy of allowing

female employees to refuse to lift items and instead ask male

employees for help.

After reclassification, Conkle had to perform more

heavy lifting, which resulted in a back injury on November

5, 1991. Conkle’s family practitioner, Dr. Dana Slauson,

allowed Conkle to return to work on condition that she

refrain from lifting. On November 8, 1991, the last day that

Conkle worked at Laird’s, the owner of Laird’s, Sulinna

Jeong, decided that Conkle could not work.

On December 9, 1992, Conkle’s worker’s

compensation lawyer told her that Sulinna Jeong had agreed

that Conkle could return to work with a twenty-five pound

weight lifting limit. although Conkle had not yet received a

doctor’s medical release, she believed that she could return

to work as a grocery checker with no modification of duties.

On December 18, 1992, Sandra Twohy ("Twohy"),

a Local 1179 representative, told Conkle that Sulinna Jeong

had "sold" Laird’s to Jadelin Enterprises, Inc., a California

corporation formed between her children, Baldwin and Jade

A-27

Jeong, for the sole purpose of purchasing Laird’s. Laird’s

would lay off all union employees by December 28, 1992.

Local 1179 believed that the "sale" was, in effect, a

repudiation of the collective bargaining agreement.

In response, Local 1179 filed a grievance under its

collective bargaining agreement to prevent the termination of

Laird’s union employees. On March 5, 1993, Local 1179

filed an unfair labor practice charge with the national Labor

Relations Board ("NLRB"), alleging that Laird’s had refused

to bargain with Local 1179 and had discriminated against its

union employzes. Picketing began on February 16, 1993 and

continued for seventeen days. On March 10, 1993, Local

1179 settled its labor dispute with one of Laird’s new

owners, Baldwin Jeong. He agreed to be bound by the 1992-

1995 Master Food Agreement and, in return, Local 1179

waived its claims for back pay for the period of December

28, 1992 through March 10, 1993 and withdrew all pending

grievances.

At the outset of the negotiations, Baldwin Jeong

indicated his reluctance to rehire Conkle. Local 1179

representatives Phil Carney ("Carney") and Twohy told

Baldwin Jeong that he would have to rehire Conkle, so long

as she provided a full medical release. On March 11, 1993,

Baldwin Jeong gave Conkle a written job description which

required that she be able to lift boxes up to fifty pounds,

stock shelves, and stand for two hours at a time.

On March 19, 1993, Conkle obtained a "qualified"

medical release from Dr. Slauson. The release states that

Conkle can perform any work "which does not require

A-28

prolonged bending, stooping or squatting." Moreover,

q Conkle "is able to lift articles up to [twenty-five pounds] if

she is not required to bend over to lift them." Furthermore,

Conkle "should not stand without moving for longer than an

hour in any 4 hour period."

In a March 21, 1993 letter, Conkle informed Local

1179 that Baldwin Jeong had written her that "because of

[Conkle’s] past and present medical conditions, [she] did not

(914) meet the requirements of employment at his firm."

Conkle requested Local 1179 to “please advise [her] of the

union position on this matter A.S.A.P." In a March 24,

1993 letter to Local 1179, Conkle’s attorney questioned

"what, if anything, Local 1179 intend[ed] to do in response

to Sheila Conkle’s [sic] of 3/21/93 in response to the

discriminatory practices of Laird’s Food Markets.”

er Me tt cs ta nt! oar a

In a March 30, 1993 letter, Local 1179’s counsel

responded:

Ms. Conkle’s medical certificates indicate she cannot

perform the duties required of her. There is no basis

to conclude that the employer’s job requirements are

inappropriate, unrelated to the actual duties or applied

discriminatorily. Moreover, it does not appear that

even with reasonable accommodation Ms. Conkle

could perform the essential duties of the jc’

The letter concluded: "If there if further information which |

would cause the Union to re-evaluate its position, please

bring it to our attention. Otherwise, the Union is not in a

position to proceed further in this matter." Neither Conkle

nor her attorney responded to the Marci: 30 letter. The next

A-29

time Local 1179 heard from Conkle was June 30, 1993, the

date this action was filed.

Conkle’s complaint includes three claims for relief:

(1) a § 301 claim against Local 1179 for breach of its

statutory duty of fair representation ("DFR") and against

Sulinna Jeong and Jadelin Enterprises, Inc. (collectively

"Employer") for the termination without just cause in

violation of the collective bargaining agreement; (2) slander

against Baldwin Jeong and Employer; and (3) intentional

interference with prospective economic advantage against

Baldwin Jeong and Employer. The district court granted

summary judgment to all defendants on all claims on May 2,

1994. Conkle v. Jeong, 853 F.Supp. 1160 (N.D.Cal.1994).

II. Analysis

A. The district court did not abuse its discretion in

denying Conkle’s request to conduct further discovery

before ruling on the summary judgment motions.

We review a district court’s denial of a request for

further discovery by a party opposing summary judgment for

abuse of discretion. /nternational Alliance of Theatrical and

Stage Employees v. Compact Video Servs., Inc., 50 F.3d

1464, 1466 99th Cir.1995), cert. denied, ---U.S.---, 116

S.Ct. 514, 133 L.Ed.2d 423 (1995). Conkle argues that,

under Rule 56(f), the district court should have allowed her

to conduct further discovery before ruling on the summary

judgment motions.

Assuming that Conkle properly requested Rule 56(f)

relief, the district court had discretion to deny the relief.

A=-3 0

"The burden is on the party seeking to conduct additional

discovery to put forth sufficient facts to show that the

evidence sought exists." Volk v. D.A. Davidson & Co., 816

F.2d 1406. 1416 (9th Cir.1987). Conkle has not met this

burden. She seeks evidence regarding alleged conversations

between Baldwin Jeong and potential employers, but fails to

put forth any facts to show that such conversations took

place.

Moreover, "(t]he district court does not abuse its

discretion by denying further discovery if the movant has

failed diligently to pursue discovery in the past." California

Union Ins. Co. v. American Diversified Sav. Bank, 914 F.2d

1271, 1278 (9th Cir. 1990), cert. denied, 498 U.S. 1088, 111

S.Ct. 966, 112 L.Ed.2d 1052 (1991); see also Qualls v. Blue

Cross of California, 22 F.3d 839, 844 (9th Cir.1994).

Conkle argues that the district court’s November 1993 oral

order prevented her from deposing Safeway employees and

Judy Cowell, but she never formally requested the court to

amend this order. Indeed, Conkle’s attorney drafted the

stipulation closing discovery, including an exception to allow

Conkle to conduct two depositions which had not been

completed on time.

In addition, although Conkle’s failure to formally

request a Rule 56(f) continuance may not be fatal, "the

absence of a formal request for a continuance is relevant to

the question whether the district court abused its discretion

by ruling on the motion when it did." Bryant v. Ford Motor

Co., 886 F.2d 1526, 1534 (9th Cir.1989), cert.denied, 493

(915) U.S. 1076, 110 S.Ct. 1126, 107 L.Ed.2d 1033 (1990)

A-31

given these factors, the district court did not abuse its

discretion in denying Conkle’s request for further discovery.

B. Local 1179 did not violate its DFR as to Conkle.

We review de novo a grant of summary judgment.

Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130

(9th Cir.1994). "Specifically, whether a union’s conduct

amounted to a breach of the duty of fair representation

presents a mixed question of law and fact that we review de

novo.” Burkevich v. Air Line Pilots Ass’n, Int’l, 894 F.2d

346,349 (9th Cir.1990).

Local 1179 asks us to give "considerable weight" to

the NLRB’s refusal to issue an unfair labor practice

complaint against Local 1179, Helmer v. Briody, 747

F.Supp. 1020, 1026 (S.D.N.Y.1990), quoting Berard v.

General Motors Corp., 493 F.Supp. 1035, 1040 (D.Mass.),

aff'd, 657 F.2d 261 91st Cir.1980), cert. denied, 451 U.S.

987, 101 S.Ct. 2322, 68 L.Ed.2d 845 (1981). In Helmer

and Berard, however, the NLRB made express factual

findings, which did not occur here. Moreover, "[t]he NLRB

general counsel has unreviewable discretion to refuse to issue

an unfair labor practice complaint, and plaintiffs were not

afforded a hearing before the NLRB. Furthermore the

courts, not the Board, have the responsibility for defining the

scope of the duty of fair representation." Smith v. Hussmann

Refrigerator Co., 619 F.2d 1229, 1245 (8th Cir.), cert.

denied, 449 U.S. 839, 101 S.Ct. 116, 66 L.Ed.2d 46 (1980).

While we might give weight to express factual findings, we

will not defer to a naked no-action decision.

A-32

Conkle alleges that Local 1179 violated its DFR in

three ways. First, in her complaint she alleges that Local

1179 inadequately supported the strike and made unnecessary

concessions to Laird’s. Her opening brief, however, appears

to abandon this argument. Even if not abandoned, the

argument lacks strength. Federal law grants a union a “wide

range of reasonableness" in representing its members.

Bautista v. Pan Am World Airlines, Inc., 828 F.2d 546, 549

(9th Cir.1987). A union breaches its DFR only when its

conduct towards a member is "arbitrary, discriminatory or in

bad faith." Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903,

916, 17 L.Ed.2d 842 (1967). Local 1179’s choice of

litigation and picketing tactics, as well as its decision to cede

some negotiating issues in order to retain union jobs and not

pressure the financial viability of Laird’s, was well within

this wide range of reasonableness.

Second, Conkle alleges that Local 1179 connived with

management to deny her reemployment by suggesting that

Baldwin Jeong require a full medical release. Construing the

evidence in the light most favorable to Conkle, her claim has

some appeal. In his deposition, Baldwin Jeong stated that he

knew nothing about a medical release before the union

representatives mentioned it. His deposition also suggests

that the union representatives first mentioned the medical

release after the contract signing, indicating that the medical

release was not a bargain necessary to save the negotiations,

but rather a gratuitous concession. Indeed, Baldwin Jeong

indicated his willingness to follow any union suggestion

regarding Conkle: "I said, ’You’re the union, tell me what

I do from now on.’ I listen to them, everything they say. I

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said, "You know the laws, you know the stuff,’ so I just

follow whatever they said and that’s all I did."

This conduct, however, does not meet the standard of

arbitrariness the Supreme Court outlined in Air Line Pilots

Ass'n, Int'l v. O'Neill, 499 U.S. 65, 111 S.Ct. 1127, 113

L.Ed.2d 51 (1991). The Court held that "a union’s actions

are arbitrary only if, in light of the factual and legal

landscape at the time of the union’s actions, the union’s

behavior is so far outside a "wide range of reasonableness,’

as to be irrational." Jd. at 67, 111 S.Ct. at 1130 (citation

omitted). Baldwin Jeong directly asked the union

representatives whether he had to rehire Conkle. While they

could have told Jeong a misleading half-truth that he had to

rehire her, they had several rationales for telling him about

the medical release. A union representative is “entitled to

decline to put forward an (916) interpretation of the

collective bargaining agreement which he and his union

reasonably [believe is] incorrect." Early v. Eastern Transfer,

699 F.2d 552, 557 (1st Cir.), cert. denied, 464 U.S. 824,

104 S.Ct. 93, 78 L.Ed.2d 100 (1983). Local 1179

reasonably believed that management could require a full

medical release. In addition, a union has good reason to

avoid souring relations by misleading a new manager who

has just signed a new collective bargaining agreement. It

was not irrational for the union representatives to answer

honestly and fully Baldwin Jeong’s inquiry about whether he

had to rehire Conkle.

Nor did Local 1179 act in bad faith in suggesting the

medical release. Conkle argues that the leaders of Local

1179 had a personal animus against Conkle over her role in

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the strike, and knew the extent of her injury when the

suggested the medical release. While the leaders of Local

1179 may have personally disliked Conkle, however, she

provides no evidence that this alleged dislike, rather than the

legitimate reasons noted above, motivated their decision to

mention the full medical release. Conkle herself was

surprised at the restrictions imposed in Dr. Slauson’s

qualified medical release, indicating that no one knew the

extent of her injury before the medical release.

Third, Conkle alleges that Local 1179 failed to pursue

her grievance diligently against Laird’s for terminating her

without "just cause" in violation of the Master Food

Agreement. A union breaches its DFR if it ignores a

meritorious grievance or processes it in a perfunctory

manner. Vaca v. Sipes, 386 U.S. 171, 191, 87 S.Ct. 903,

917, 17 L.Ed.2d 842 (1967). A union’s decision to pursue

a grievance based on its merits or lack thereof is an exercise

of its judgment. Stevens v. Moore Business Forms, Inc., 18

F.3d 1443, 1447 (9th Cir.1994). A union’s decision is

arbitrary only if it lacks a rational basis. Robesky v. Qantas

Empire Airways Ltd., 573 F.2d 1082, 1089 (9th Cir. 1978).

Assuming that Conkle properly exhausted the

grievance and arbitration procedures, Local 1179’s rejection

of her claim did not lack a rational basis. As its March 30,

1993 letter states,

Ms. Conkle’s medical certificates indicate she cannot

perform the duties required of her. There is no basis

to conclude that the employer’s job requirements are

inappropriate, unrelated to the actual duties or applied

discriminatorily. Moreover, it does not appear that

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even with reasonable accommodation, Ms. Conkle

could perform the essential duties of the job.

Conkle does not dispute that Laird’s physical requirements

matched industry standards. Instead, she argues that the

"common law of the shop" at Laird’s allowed female

employees to refuse any heavy lifting. Since her letters

never informed Local 1179 of this policy, however, it was

hardly irrational for the union to have overlooked it.

Moreover, even if Local 1179 knew of the policy, it had no

duty to advocate a policy which it reasonably believed would

constitute sexual discrimination. Cf. Early v. Eastern

Transfer, 699 F.2d 552, 557 91st Cir.1983), cert. denied,

464 U.S. 824, 104 S.Ct. 93, 78 L.Ed.2d 100 (1983). At

most Local 1179 made "an error in evaluating the merits of

a grievance," for which we have never held a union liable

absent proof of discrimination or bad faith. Peterson v.

Kennedy, 771 F.2d 1244, 1254 (9th Cir.1985), cert. denied,

475 U.S. 1122, 106 S.Ct. 1642, 90 L.Ed.2d 187 (1986).

Conkle thus must now show discrimination or bad

faith. As noted above, however, the evidence of bad faith is

too weak to survive summary judgment, and Conkle nowhere

alleges discrimination. Given Local 1179’s strong rationale

for not pursuing Conkle’s claim, no reasonable trier of fact

could find that Local 1179 made its decision in bad faith.

ied Because Local 1179 did not breach its DFR,

Conkle cannot pursue her § 301 claim against

Employer.

Courts "should defer to the tribunal chosen by the

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parties finally to settle their disputes." Hines v. Anchor

Motor Freight, Inc., 424 U.S. 554, 563, 96 S.Ct. 1048,

1055, 47 L.Ed.2d 231 (1976). “Therefore, in order to

proceed with a §301 suit against the employer, the employee

must show not only that her discharge was contrary (917) to

the agreement, but also must demonstrate that the union

breached its duty of fair representation.” Schlacter-Jones v.

General Tel., 936 F.2d 435, 442-43 (9th Cir. 1991).

Because Local 1179 did not breach its DFR, Conkle cannot

pursue her § 301 claim against Employer.

D. Conkle fails to establish a claim for slander.

We review a grant of summary judgement de novo.

Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th

Cir.1995). Conkle and her husband asked their friends

Deborah DePatta and Charles Cain to telephone Baldwin

Jeong and ask to "verify Conkle’s employment.” Conkle

alleges that Jeong’s statements to these callers constitute

slander. Cal.Civ.Code §46.

Truth is a complete defense to slander, "regardless of

the bad faith or malicious purpose of the publisher of the

material." Swaffield v. Universal Ecsco Corp., 271 Cal.

App.2d 147, 76 Cal.Rptr. 680, 690 (1969). Conkle alleges

that Baldwin Jeong made statements to the effect:

(a) that while [Conkle] worked at the market she

acted like she thought she was management, knew

everything and was difficult as an employee; (b) that

[Conkle] led a strike against the market, but her own

Union turned against her because she was too radical;

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[Conkle], some saying they would rather stand in

another cashier’s line for 2 hours, rather than be

waited on by [her]; (d) [sic] and that [Conkle] is

more trouble than she is worth.

Most of these statements are indisputably true. Conkle was

never a management employee, yet she stated that she

performed management duties and acted accordingly. Conkle

led the strike against Laird’s, and has stated that her union

turned against her because she advocated a harder line

against Laird’s. Laird’s received customer complaints about

Conkle, including one by a customer who "found Sheila

Conkle to be so unpleasant that when [he] went into the

store, [he] would go to another checkstand to avoid her."

These true statements are not actionable.

The other statements are not actionable because they

are statements of opinion. An actionable statement must

imply a provably false factual assertion. Milkovich v. Lorain

Journal Co., 497 U.S. 1, 19-20, 110 S.Ct.2695, 2706-2707,

111 L.Ed.2d 1 (1990). For example, a statement that a

certain teacher is “the worst teacher at FHS" is not

actionable because it cannot be proven true or false. Moyer

v. Amador Valley Joint Union High Sch. Dist., 225

Cal.App.3d 720, 275 Cal.Rptr 494, 497 (1990). Likewise,

the statements that Conkle was "difficult as an employee"

and "more trouble than she [was] worth" are statements of

opinion; they do not imply a provably false factual assertion.

Jeong also enjoys a qualified privilege as a former

employer. "It is well established that a former employer

may properly respond to an inquiry from a_ potential

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employer concerning an individual’s fitness for employment,

and if it is not done maliciously such response is privileged."

Neal v. Gatlin, 35 Cal.App.3d 871, 111 Cal. Rptr. 117, 121

(1973); Cal.Civ.Code §47(c). Although DePatta and Cain

were not prospective employers, they implied to Jeong that

they were, and did no under the instigation of Conkle and

her husband. Jeong reasonable believed he was speaking to

prospective employers, and should not lose his privilege

through Conkle’s subterfuge. Conkle must thus establish

Jeong’s malice. At worst, Jeong responded candidly to

direct questions. The callers made the most derogatory

statements ("She’s a real trouble maker, huh?" and "She

sounds like she’s more trouble than she’s worth"), to which

Jeong merely assented. Moreover, Jeong volunteered

positive information ("Well, she won’t steal or anything like

that"), and refrained from providing other negative

information, namely that her injuries prevented her from

clerking. The record simply does not reveal the malice

needed to over come Jeong’s qualified privilege. The district

court properly granted summary judgment.’

' Consent also constitutes an absolute privilege to the

publication of defamatory matter. Royer v. Steinberg, 90

Cal. App.3d 490, 153 Cal.Rptr. 499, 503 (1979). "Where a

defendant, not in the presence or hearing of third persons,

makes a slanderous statement about a plaintiff, and

thereafter, at the request of the plaintiff, repeats the

statement in the presence and hearing of third persons, such

repetition cannot be made the basis of an action for slander."

Pouchan v. Godeau, 167 Cal. 692, 140 P. 952, 953 (1914).

In Royer, a superintendent wrote an “open letter" to the

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E. Conkle fails to establish a claim for intentional

interference with prospective economic

advantage.

We review a grant of summary judgment de novo.

Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th

Cir.1995). Conkle claims that Baldwin Jeong uttered

Statements to prospective employers intending to prevent her

from obtaining employment. The elements of the tort of

intentional interference with perspective economic advantage

are:

(1) an economic relationship between the plaintiff

and some third person containing the probability of

future economic benefit to the plaintiff; (2)

knowledge by the defendant of the existence of the

relationship; (3) intentional acts on the part of the

defendant designed to disrupt the relationship; (4)

actual disruption of the relationship; and (5) damages

to the plaintiff proximately caused by the acts of the

defendant.

Blank v. Kirwan, 39 Cal.3d 311, 216 Cal. Rptr. 718, 723,

703 P.2d 58, 70 (1985).

community which "challenged" a school board to "prove"

charges of improper election activities. Royer v. Steinberg,

153 Cal.Rptr. at 502. The court held that Royer had

consented to the board’s subsequent publication of its

charges.

A- 40

Conkle fails to satisfy these elements. She provided

no evidence of an expected job at Safeway or elsewhere, or

of any conversation between Jeong and any prospective

employer. Safeway’s decision not to hire Conkle, even

viewed in the light most favorable to her, does not suffice to

show that Jeong spoke to Safeway, much less made

disparaging comments about her.

The judgment of the district court is AFFIRMED.

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APPENDIX - 3

NOT FOR PUBLICATION

UNITED STATE COURT OF APPEALS,

FOR THE NINTH CIRCUIT

SHEILA CONKLE, )

JNO. 94-16012

Plaintiff, J\DC#ACV-93-02443-VRW

)

SULINNA JEONG, dba

LAIRD’S FOOD MARKET,

BALDWIN JEONG, JADELIN

LAIRD’S FOOD MARKET,

UNITED FOOD AND COMMER-

CIAL WORKER’S UNION,

LOCAL 1179 AFL-CIO,

i i i

Defendants.

Before: CHOY, WIGGINS and LEAVY, Circuit Judges.

The panel has voted to deny appellant’s petition for

rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a vote

on whether to rehear the matter en banc. Fed. R. App. P).

35.

The petition for rehearing is denied and the

suggestion for rehearing en banc is rejected.

A-42

CERTIFICATE OF SERVICE

BY MAIL

I hereby certify as follows:

I am an active member of the State Bar of California

and am not a party to the above-entitled action. I am also

admitted to practice before the Federal Court of the Northern

District of California, the Ninth Circuit and the Supreme

Court of the United States. My business address is 3125

Clayton Road, Second Floor, Concord, California 94519.

I served the attached:

PETITION FOR WRIT OF CERTIORARI

by depositing a true copy thereof in the United States Mail

in Concord, California, on May 3, 1996, enclosed in a sealed

envelope with the postage thereon fully prepaid, and

addressed as follows:

STEVEN L. STEMERMAN, ESQ.

MICHAEL T. ANDERSON, ESQ.

DAVIS, COWELL & BOWE

100 Van Ness Ave., 20th FI.

San Francisco, CA 94102

MORRIS DAVIDOVITZ, ESQ.

DAVIDOVITZ & YARON

111 Pine St., 12th FI.

San Francisco, CA 94111

THE HONORABLE JUSTICES CHOY, WIGGINS &

LEAVEY

U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Post Office Box 193939

San Francisco, CA 94119-3939

THE HONORABLE VAUGH R. WALKER

U.S. DISTRICT COURT JUDGE

450 Golden Gate Avenue

San Francisco, CA 94102-3483

I certify under penalty of perjury under the

laws of the State of California that the foregoing is true and

correct.

DATED: May 3, 1996.

* Fore. —_

WILLIAM J. HOOY

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.