Opposition Brief — Amalgamated Transit Union v. Niehaus

No. 99-326 15 TR LER

In The

Supreme Court of the United States

4

AMALGAMATED TRANSIT UNION, and

ATU LOCAL 1700,

Petitioners.

VS.

CARL E. NIEHAUS,

Respondent,

5

On Petition for Writ of Certiorari to the

United States Court of Appeals, Ninth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

JOSEPH E. ORZANO

Counsel of Record

323 California Ave. (Suite 1)

Reno, Nevada 89509

(775) 323-2122

i

QUESTIONS PRESENTED

l. ls the Court of Appeals, Ninth Circuit

decision at variance with Petitioners’ cited

decisions from two other Circuits?

2. Were Niehaus’ state law claims based on

interpretation of the collective bargaining

agreement, and if so, did Niehaus disavow

reliance on that agreement for the first time

on appeal?

4, Must a court consider only the complaint,

and not anything else after the complaint is

submitted, in deciding whether a state

claim is preempted?

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TABLE OF CONTENTS

Questions Presented...........ccccceeccesseseeeecees

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I, The Ninth Circuit Decision Does Not

Conflict With The Third And Eleventh

Circuits, Nor With The U. S. Supreme

II. The State Law Claims Were Not Based

on Interpretation of the Collective

Bargaining Agreement, and Niehaus

Did Not Disavow Reliance on That

Agreement for the First Time on

HIT. There Is Also No Conflict with the Third

and Eleventh Circuits, Nor Support for

Petitioners’ Contention That a Federal

District Court Can Consider Only the

Complaint in Deciding Whether or Not

to Remand State Claims..... 8

L,I RP RISER REL ee 10

ill

TABLE OF AUTHORITIES

Cases

United States Supreme Court

Allis-Chalmers Corp. v. Lueck,

I I I Goins cc cccnuconcavesessebes y &

Carneigie-Mellon v. Cohill,

He ects PND CUPID ccccncccoecccscesceecesesoers 8

United States Court of Appeals

Malia v. RCA Corp.

794 F.2d 909 (3°° Cir. 1986),

cert. denied, 482 U.S. 927 (1987)....... 2-4,9

Redmond v. Dresser Indus., Inc.,

734 F.2d 633 (11" Cir. 1984)

SEIS SRE ee 2-4, 9

I iia race caaittrsedanncaneousessntedioees 5

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STATEMENT OF THE CASE

The Unions (ATU! and Local 1700) are

attempting to appeal a Court of Appeals, Ninth

Circuit affirming of a district court's remand of

pendent state claims with the argument that those

claims should be preempted by labor law.

Niehaus makes the following principal

counter arguments in support of his contention

that the Petition for Writ of Certiorari should be

denied:

(1) The Ninth Circuit decision is not at

variance with Petitioners’ cited decisions from two

other Circuits;

(2) The state law claims were not based on

interpretation of the collective bargaining

agreement:

(3) Niehaus did not disavow reliance on the

collective bargaining agreement for the first time

on appeal: and

(4) Petitioners are wrong in their argument

that a court may consider only the complaint, and

not anything else after the complaint is submitted,

in deciding whether a state claim is preempted.

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REASONS FOR DENYING THE WRIT

I.

THE NINTH CIRCUIT DECISION DOES NOT

CONFLICT WITH THE THIRD AND ELEVENTH CIRCUITS,

NOR WITH THE U. S. SUPREME COURT.

Contrary to Petitioners’ contentions, the

Ninth Circuit's decision does not conflict with those

of the Third and Eleventh Circuits in Malia v. RCA

Corp., 794 F.2d 909 (3 Cir.1986), cert. denied, 482

U.S. 927 (1987) and Redmond v. Dresser Indus.,

Inc., 734 F.2d 633 (11"™ Cir. 1984), nor is it

inconsistent with Allis-Chalmers Corp. v. Lueck, 471

U.S. 202 (1985).

Allis-Chalmers is readily distinguishable from

the Niehaus case. Lueck was a union member (/d.

at 203); Niehaus was not a union member. Lueck's

complaint required interpretation of the labor

contract because it depended upon whether the

employer's conduct breached an implied labor

contract provision. (id. at 214 and 220).

Niehaus’ state law claims do not involve

breach of the labor contract, nor do they rely on

an interpretation of the labor contract, as

confirmed in the findings of both the Federal

District Court and the Court of Appeals, Ninth

Circuit decisions. The Allis-Chalmers holding does

not contradict the Niehaus holding.

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Redmond v. Dresser Indus., Inc., 734 F.2d 633

(11™ Cir. 1984) is also readily distinguishable from

the Niehaus case. Redmond, like Niehaus, was

not a union member at the times relevant to his

state claims, but Redmond was not suing his

employer on any separate contract; he was suing

on the basis of his employer's failure to adhere to

the terms of the labor contract. (id. at 635).

Again, Niehaus’ state law claims do not

involve breach of the labor contract, nor do they

rely on an interpretation of the labor contract, as

one can see in the findings of both the Federal

District Court and the Court of Appeals, Ninth

Circuit decisions. The Redmond holding does not

contradict the Niehaus holding.

Malia v. RCA Corp., 794 F.2d 909 (3°

Cir.1986), cert. denied, 482 U.S. 927 (1987) supports

the Niehaus decision in the Ninth Circuit. In Malia

the court found that “Malia's Complaint also

alleges facts that would support a claim for

breach of an oral contract.” (Id. at 912).

“Thus, because we construe Malia's

Complaint as alleging a state-law

breach of contract claim based on

an oral employment contract we

conclude that that claim and

Malia’s state-law tort claims, which

derive from the breach of the oral

contract, are independent of and

do not interfere with the Local 178

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collective > bargaining agreement. “s

(Id. at 913).

The Malia holding is perfectly consistent with

the Niehaus holding. In fact its findings, as well as

its holdings, read like almost an identical case to

the Niehaus case.

In summary, Neither Redmond nor Malia

conflict with the decisions below, and furthermore,

neither even address the question on which

Petitioners seek review. In both cases, a supervisor

plaintiff sued his union and his employer over

breaches of an alleged promise to permit him to

return to the bargaining unit.

In Redmond the plaintiff was relying solely

on a promise found in the collective bargaining

agreement, and the court held his claim

preempted.

In Malia the plaintiff relied both on the

collective bargaining agreement and on a

separate oral promise, and the court held the

former claim preempted but the latter not

preempted.

Both cases are thus entirely consistent with

the holding of the District Court and the Court of

Appeals, Ninth Circuit on the preemption issue.

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THE STATE LAW CLAIMS WERE NEVER BASED ON

INTERPRETATION OF THE COLLECTIVE BARGAINING

AGREEMENT, AND NIEHAUS DID NOT DISAVOW

RELIANCE ON THAT AGREEMENT FOR THE FIRST TIME

ON APPEAL.

A. Niehaus Disavowed Reliance on the

Interpretation of the Collective Bargaining

Agreement During the Federal District Court

Proceedings as Shown in the Findings of That

Court.

The Unions’ principal claim, under

QUESTIONS PRESENTED in their Petition to this Court,

is that Niehaus"disavowed reliance on the

[collective bargaining agreement] for the first time

on appeal,” that the “complaint alleges state-law

claims that require interpretation of the labor

contract,” and that plaintiff is attempting to

“evade pre-emption under Labor Management

Relations Act §301 by disavowing reliance on the

labor contract on appeal.” (Pet. Cert. at page i).

On the contrary, Niehaus disavowed

reliance on the labor contract with respect to his

state claims before the Federal District Court, and

that court, in its remand order of 9/30/97 found as

follows:

* ... plaintiff argues that he

has claims that are separate and

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independent of the collective

bargaining agreement. He claims

that a separate contract existed

between himself, Greyhound, and

the unions that he would be able to

return to a job in the bargaining unit

regardless of the terms of the

bargaining agreement. (Pet. Cert.

at Apdx. B37).

B. Also, Niehaus Did Not Indicate Reliance

on the Collective Bargaining Agreement with

Respect to His State Claims in the First Amended

Complaint.

Niehaus’ Third through Sixth, and Eighth

Causes of Actions became his remanded state

law claims. (Pet. Cert. Apdx B-111 through B114,

9191 20-133 and 94137-139)

Each of these causes of actions relates to

the separate promissory contracts between

Niehaus and the Greyhound and Union

defendants which assured Niehaus that he could

transfer from management to a union level,

working position and rejoin the union.

Not one of these state law causes of actions

in the First Amended Complaint made any

reference to the collective bargaining agreement.

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Furthermore, If we examine the

“Enumeration of the Facts Underlying This

Complaint” (starting at Pet. Cert. Apdx B-95) in

Niehaus’ First Amended Complaint, we find that it

explains that Niehaus first checked with a union

Official (Russ Buell) to investigate whether or not

the collective bargaining agreement provided for

union membership reinstatement with seniority or,

on the other hand, presented any obstacle to

union membership reinstatement. He learned that

the collective bargaining agreement seniority

clause did not apply to him any longer (since he

had been in management more than two years),

and that the agreement did not present any

obstacle to rejoining the union. (Pet. Cert. at Apdx

B-97, 122 &24).

Niehaus wisely did not resign until after he

was assured by Greyhound management (Dennis

Bishop) and by a union official (Russ Buell) that

they would each cooperate in shifting him from

management to a union member working

position. (Pet. Cert. Apdx B-97, J 22).

These were critical promises for Niehaus,

because he needed to be certain that he would

have employment continuity in order to safeguard

his pension, and also to further contribute to it

during his final working years.

A fair reading of the state causes of actions

and the factual narrative presented in the First

Amended Complaint reveals that Niehaus

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complained about a promissory contract for

continued employment completely independent

of the collective bargaining agreement.

THERE IS ALSO NO CONFLICT WITH THE THIRD

AND ELEVENTH CIRCUITS, NOR SUPPORT FOR

PETITIONERS’ CONTENTION THAT A FEDERAL

DISTRICT COURT CAN CONSIDER ONLY THE

COMPLAINT IN DECIDING WHETHER OR NOT TO

REMAND STATE CLAIMS.

Petitioners are simply wrong in arguing that

a court may consider only the complaint, and not

anything said after the complaint if submitted. It is

true that the question of whether removal is proper

is to be decided based on the complaint (subject

of course to the well-pleaded complaint

doctrine).

But it is also clear that a party may affect

the decision of the District Court whether to

undertake a discretionary remand of a state law

claim. Thus in Carneigie-Mellon v. Cohill, 484 U.S.

343 (1988) the U.S. Supreme Court responded to

~ the expressed concern that plaintiffs might

manipulate the process by dropping federal-

sounding parts of their claims in order to secure a

remand, not by saying that such a tactic could or

should never succeed in obtaining a remand, but

rather by urging the lower courts to exercise their

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discretion to deny a remand when it appeared

that the plaintiff was being manipulative.

Here, the District Court chose to accept

plaintiff's characterization of his state claims,

stated in the complaint, as not relying at all on

language in the collective bargaining agreement.

In both Redmond and Malia the courts

discussed those plaintiffs’ claims by reference to

the complaint and the arguments made in district

court or appellate briefs, and the arguments could

have been considered in deciding how to

characterize those plaintiffs’ claims, and thus

whether fo hold the claims preempted.

Nor for that matter, was there any discussion

of this question in Allis-Chalmers.

The opinion of the Court of Appeals below is

devoid of any discussion of this supposedly

pressing procedural question that is so vital that

Petitioners urge it as a basis for the Court's adding

this case to its docket.

In short, the decision below does not conflict

with any case referred to by Petitioners, or of

which we are aware.

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CONCLUSION

1. The Ninth Circuit's holding does not

conflict with those of the Third and Eleventh

Circuits.

2. Niehaus’ state law claims were not

based on interpretation of the collective

bargaining agreement.

3. Niehaus did not disavow reliance on the

collective bargaining agreement for the first time

on apped! as Petitioners’ claimed. (Pei. Cert. 16).

4. Niehaus’ First Amended Complaint itself

does not base his state claims on interpretation of

the collective bargaining agreement.

5. Petitioners’ provided no authority to

back up their claim that a Federal District Court

can consider only the complaint in deciding

whether or not to remand state claims.

The Petition for Writ of Certiorari should be

denied.

DATED:

Respectfully submitted,

JOSEPH E. ORZANO

328 California Ave. (Suite 1)

Reno, Nevada 89509

Counsel of Record for

Respondent Carl E. Niehaus