Petition for Writ of Certiorari — Hansen v. Aerospace Defense Related Industry District Lodge 725

01138 6 JAN 24 2002

No.

OFFICE OF THE CLERK

In The

Supreme Court of the United States

¢

ROBERT T. HANSEN and MARLA DES ERMIA,

Petitioners,

AEROSPACE DEFENSE RELATED INDUSTRY

DISTRICT LODGE 725 OF THE INTERNATIONAL

ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS,

Respondent.

¢

On Petition For A Writ Of Certiorari

To The Superior Court Of California,

County Of Los Angeles

¢

PETITION FOR A WRIT OF CERTIORARI

+

SANFORD L. Horn

Counsel of Record

Law OFFICES OF

SANFORD L. Horn

301 North Lake Avenue

Suite 320

Pasadena, California 91101-4108

(626) 795-7295

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

Soe?

athens

QUESTIONS PRESENTED

Are there any circumstances in which an employee of

a labor union can prosecute an action for wrongful termi-

nation in violation of public policy under state law which

is not preempted under federal labor law? In the case of

Plaintiff Hansen, may an elected union official who is

discharged by the union for exposing union corruption to

the union membership prosecute a state action for wrong-

ful discharge in violation of public policy, or does the

policy of promoting union democracy as set forth in

Finnegan v. Leu, 456 U.S. 431, 103 S. Ct. 1867, 72 L. Ed. 2d

239 (1982) preempt such a claim under federal law? In the

case of Plaintiff Des Ermia, may an employee of a labor

union who is employed pursuant to a collective bargain-

ing agreement and who is discharged by the union in

retaliation for blowing the whistle on union officials’

theft of union funds prosecute a state action for wrongful

discharge in violation of public policy, or is such an

action preempted by federal labor law because of the

~ need for uniformity in interpreting collective bargaining

agreements?

li

LIST OF PARTIES

The Petitioners are Robert T. Hansen and Marla Des

Ermia.

The Respondent is Aerospace Defense Related Indus-

try District 725 of the International Association of Machi-

nists and aerospace Workers.

Calvin Duncan, Barbara Powley and Does 1-100,

inclusive, were dismissed from the case.

ill

TABLE OF CONTENTS

Page

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OPINIONS AND ORDERS BELOW ................ 1

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STATUTORY AND CONSTITUTIONAL PROVI-

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WHY REVIEW SHOULD BE GRANTED ........... 9

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TABLE OF AUTHORITIES

Page

Cases

Bloom v. General Truck Drivers, 783 F.2d 1356 (9th

Ck Se accucebn ss enkse hen eeesanaeenaesewsas sane 13

Finnegan v. Leu, 456 U.S 431, 103 S. Ct. 1867, 72

me Bf 2: perp perr rere 8, 12, 13, 14

Foley v. Interactive Data Corporation, 47 Cal. 3rd

i ee cs ee SU cd bes co cece bchse tas tadceaws 9

Lingle v. Norge Division, Magic Chef, 486 U.S. 399,

100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988)....... 14, 16

Screen Extra’s Guild, Inc. v. Superior Court, 51 Cal.

3rd 1017, 275 Cal. Rptr. 395 (1990)................ 13

Sheet Metal Workers v. Lynn, 468 U.S. 347, 109 S. Ct.

xe ee ee rrr erry 14

U.S. v. Haverlick, 195 F. Supp. 331 (N.D.N.Y. 1961),

affirmed, 311 F.2d 229 (2d Cir. 1963)............... 11

STATUTES

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RULES

Rule 10(c) of the Rules of the United States

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OPINIONS AND ORDERS BELOW

The jury verdicts and judgments thereon in the trial

court are set forth at Appendix 13-22. The Court of

Appeal decision is reported at 90 Cal. App. 4th 977, 109

C.R. 2d 667 and is set forth in the Appendix 1. The denial

of review by the California Supreme Court is set forth in

Appendix 23.

JURISDICTION

This Court’s jurisdiction is based on section 1257(3)

of the Judicial Code (28 U.S.C. § 1257(3)) and Rule 10(c) of

the Rules of the United States Supreme Court. It involves

an important question of federal law that has not been

decided by this Court and a decision by a State Court

which is inconsistent with the principles previously artic-

ulated by this Court. The Court of Appeals of the State of

California reversed a jury verdict in favor of Plaintiffs in

this case on the basis that the Plaintiffs’ causes of action

were preempted by the Labor Management and Report-

ing Act set forth at 29 U.S.C. § 401 et seq. and section 301

of the Labor Management Relations Act, set forth at 29

U.S.C. § 185.

.

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

The statutes involved are sections 185, 401 and 524 of

Title 29 of the United States Code. These are set out at

Appendix 24.

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STATEMENT OF THE CASE

The International Association of Machinists and

Aerospace Workers is one of the largest labor unions in

the country. It consists of several divisions. There is an

International. Below the International are subordinate

units which are called districts. The districts are made up

of a number of local lodges. (R.T. p. 604)

The plaintiffs in this case were long-time employees

of the Machinist Union. Hansen was an elected business

agent of District 720, whose term of office was four years.

Des Ermia was an elected treasurer of District 727. In the '

early nineties the machinists union began to experience a

reduction in its membership that paralleled the reduction

in the aerospace industry. This reduction led to a reorgan-

ization of some of the districts and locals under the

auspices of the International. In January of 1994 the

defendant in this case, District 725 was created. It was

made up of a number of other districts in the southern

California area. Among those districts which became a

part of District 725 was District 720 and District 727. (R.T.

p. 606)

ee

When the districts which employed the plaintiffs

herein were merged into District 725 the plaintiffs’

employment was transferred to the new district. Plaintiff

Hansen continued to function as an elected business

agent. It was defendant's contention at the trial that at

this point Hansen was an appointed business agent.

Hansen contended that he was elected to a four-year term

by the membership and continued in that capacity. (R.T.

pp. 1290-1294, 613.) Des Ermia’s position as an elected

secretary-treasurer was eliminated. She was employed in

a

the new district as a clerical worker, and her new employ-

ment was subject to a collective bargaining agreement.

(The Machinist Union had a collective bargaining agree-

ment with the Office Workers Union that covered its

clerical employees.) There was no break in Des Ermia’s

employment. (R.T. pp. 616, 617)

Calvin Duncan became the president and directing

business agent of-the new District 725 by means of a new

method of selecting presidents. He was elected by dele-

gates who had been selected by the local lodges. He was

not elected by a vote of the membership. Previously the

district presidents had been directly elected by the union

membership. (R.T. p. 606)

Duncan terminated Hansen’s employment effective

May 31, 1996. He terminated Des Ermia’s employment

effective January 1, 1997. Duncan’s stated reasons for

terminating Hansen were his poor performance as a busi-

ness agent and his insubordination which was, in effect,

undermining Duncan's authority in his management of

District 725. He also stated Hansen’s termination was for

seconding a motion before the delegate body to have

business agents elected instead of appointed.

Duncan's stated reason for terminating Des Ermia

was that she was being laid off for lack of work. In the

case of each of the plaintiffs, the jury unanimously found

these reasons to be false and pretextual and adopted the

plaintiffs’ theory of the reasons for their termination.

(R.T. pp. 513-515, 520-522)

Each of the plaintiffs presented evidence from which

it could be reasonably inferred that they were terminated

because they were exposing corruption and thievery on

the part of their superiors and when warned about

reporting such conduct refused to remain silent and par-

ticipate in a cover up. The methods by which they

exposed this corruption were different.

Des Ermia discovered that her supervisor, Barbara |

Powley, was using the union credit card to make personal

purchases. She was purchasing such items as horse feed

and clothing and charging them to the union. Des Ermia

discovered five separate transactions involving personal

expenditures with union funds. (R.T. pp. 628, 634) The

supervisor was also converting monies from the union’s

petty cash fund. (R.T. p. 642)

When Des Ermia discovered this misuse of union

funds, she reported what she found to an auditor with

the International. (R.T. pp. 630-640) This precipitated an

investigation which in retrospect appeared to be part of

the cover up. The investigation was conducted by an

auditor from the International named Jay Borman. His

investigation was limited to inquiring of the suspected

thief if she had an explanation for her conduct. She

claimed everything was an innocent mistake and her

explanation was accepted. The auditor never questioned

Des Ermia concerning the misappropriation of union

funds, nor apparently anyone else. Nor did he attempt to

determine whether or not other credit card charges made

by the supervisor Powley were legitimate. (R.T. pp. 651

and 2163, 2174)

The evidence established that after making this

report Des Ermia was subjected to a course of conduct

that was calculated to make her resign. She was subjected

to numerous forms of harassment which included, among

ul

other things, falsely accusing her of misconduct in her job

performance. Her employment benefits, such as sick

leave and vacation time, were taken away from her and

later returned. She was subjected to extreme criticism and

ordered to engage in physical labor that was calculated to

and did, in fact, cause her physical injuries. (R.T. pp. 657,

684-687) When this tactic failed, she was terminated. The

stated reason for her termination was she was laid off for

lack of work. However, Des Ermia offered evidence that

there was an abundance of clerical work that remained

even several years after her termination. This was true

irrespective of the issue of seniority rights. There was a

backlog of work that would require at least five of six

months work when she was purportedly terminated for

lack of work. (R.T. p. 920)

Hansen’s method of exposing corruption within the

union was different. He spoke out to the membership

about the thefts revealed by Des Ermia and the fact that

his superiors condoned such conduct. He also spoke to

the membership concerning the handling of large

amounts of money by Duncan. At the time the new

district was created each of the old districts controlled

real estate and money belonging to the district through

what were known as building corps. The money and real

estate from these entities were supposed to be transferred

to the new district. Although Duncan had publicly stated

that he had transferred such funds from the old District

720, Hansen discovered that this was not true. Approxi-

mately $90,000 in such funds were not accounted for.

Hansen spoke out to the membership about Duncan’s

misrepresentations and his handling of these funds. (R.T.

p. 1524)

Hansen's reports to the membership occurred in the

following context. Hansen was an elected official of the

union and felt as a result his first responsibility was to

the membership. The situation he was confronted with

occurred as a result of anonymous flyers that began circu-

lating among the members which accused the union hier-

archy of condoning thefts by office manager Barbara

Powley and misrepresentations by president Calvin Dun-

can as to the handling of union funds. Members would

approach him as an officer of the union with inquiries as

to the validity of these charges. Hansen felt an obligation

as an officer of the union to respond to these inquiries

truthfully. His responses indicated that the anonymous

charges being circulated in the flyers were true. (R.T. pp.

1524, 1528-1530)

Hansen spoke out to the membership in this fashion

both before and after he was threatened with the loss of

his job if he did so. Calvin Duncan accused him of

authoring these flyers and stated that if he knew Hansen

was speaking out in this fashion he would be fired.

Hansen’s choice was to lie to the membership, remain

silent and conceal what he knew were improprieties in

the handling of union funds, or to inform the member-

ship of the true facts. He chose the latter course of action

and was fired as a result. (R.T. pp. 1522-1530)

This case was tried to a jury with each plaintiff

asserting a single cause of action for wrongful termina-

tion based on a violation of public policy. (Several of the

original causes of action were dismissed on preemption

grounds when the cases were removed to federal district

court, with that Court denying such motions as to the

wrongful termination in violation of public policy

claims.) Both plaintiffs asserted that they were harassed

and terminated for exposing the fact that union officials

were embezzling union funds and misrepresenting the

status and location of other union funds entrusted to

those officials. The defendant contended that one of the

plaintiffs, Hansen, was terminated because of policy dif-

ferences with management and poor work performance.

The defendant asserted that the other plaintiff, Des

Ermia, who was a clerical employee and employed pur-

suant to a collective bargaining agreement, was termi-

nated for lack of work.

The jury was instructed that they should find for the

defendant if the plaintiffs failed to prove that the defen-

dant’s stated reason for the terminations was false. (R.T.

pp. 495, 496) The jury returned a unanimous verdict

finding in the case of Hansen that his termination was not

because of policy differences with his union superior. In

specific interrogatories submitted to the jury they unani-

mously found that Hansen reported to union officials or

the membership that another employee committed theft

or embezzlement against the union; and that defendant’s

stated reason for terminating Hansen, (that is, policy

differences between him and management) was not a

“, .. true reason but a pretext to retaliate against Mr.

Hansen for responsibly reporting that another employee

committed theft or embezzlement against the union.”

(R.T. p. 533) -

With respect to Des Ermia, the jury was instructed to

find for the defendant if the plaintiff failed to prove that

the defendant’s stated reason for termination, that is,

because of a lack of work, was false. In answers to special

interrogatories submitted to the jury on Des Ermia’s

Xe

claim, the jury also unanimously found that the stated

reason for the termination was false and that “ ... the

defendant’s stated legitimate reason for terminating

Marla Des Ermia’s employment was not its true reason,

but a pretext to retaliate against Ms. Des Ermia for

responsibly reporting that another employee committed

theft or embezzlement against the union.”

The jury returned unanimous verdicts for each of the

plaintiffs, finding that they were terminated in violation

of public policy because their termination was caused by

their exposure of corruption within the union. The Cali-

fornia Court of Appeal held, at 90 Cal. App. 4th 977, 109

Cal.Rptr.2d 482 that the cause of action asserted by plain-

tiff Hansen was preempted by the federal labor law :

because to permit such a cause of action would interfere

with the promotion of union democracy under the doc-

trine enunciated in Finnegan v. Leu, 456 U.S 431, 103 S. Ct.

1867, 72 L. Ed. 2d 239 (1982). The Court of Appeal further

held that the cause of action asserted by plaintiff Des

Ermia was preempted under the federal labor law

because permitting such a cause of action under the cir-

cumstances required an interpretation of a collective bar-

gaining agreement thereby jeopardizing uniformity in the

interpretation of collective bargaining agreements. A

Petition for Review was duly filed with the California

Supreme Court. Review was denied by the California

Supreme Court on October 31, 2001.

FLAY» eS Ps

¢

State law causes of action for wrongful termination of

employment in violation of public policy are well estab-

lished in the law. See Foley v. Interactive Data Corporation,

47 Cal. 3rd 654, 254 C.R. 211 (1988). In this case the public

policy being promoted is to encourage people to expose

and route out corruption in labor unions. The encourage-

ment of such conduct is forcefully expressed in the fed-

eral Labor Management and Reporting Act. Sections

401(a) 401(b) of Title 29 of the United States Code rather

eloquently describe the purpose of unions and the public

policy of protecting the integrity of unions. They provide

WHY REVIEW SHOULD BE GRANTED

as follows:

Ҥ 401. Congressional declaration of findings, purposes,

and policy

(a)

Standards for labor-management relations

The Congress finds that, in the public

interest, it continues to be the respon-

sibility of the Federal Government to pro-

tect employees’ rights to organize, choose

their own representatives, bargain collec-

tively, and otherwise engage in concerted

activities for their mutual aid or protec-

tion; that the relations between employers

and labor organizations and the millions

of workers they represent have a substan-

tial impact on the commerce of the Nation;

and that in order to accomplish the objec-

tive of a free flow of commerce it is essen-

tial that labor organizations, employers,

and their officials adhere to the highest

standards of responsibility and ethical

conduct in administering the affairs of

10

their organizations, particularly as they

affect labor-management relations.

(b) Protection of rights of employees and the

public The Congress further finds, from

recent investigations in the labor and

management fields, that there have been a

number of instances of breach of trust,

corruption, disregard of the rights of indi-

vidual employees, and other failures to

observe high standards of responsibility

and ethical conduct which require further

and supplementary legislation that will

afford necessary protection of the rights

and interests of employees and the public ;

generally as they relate to the activities of

labor organizations, employers, labor rela-

tions consultants, and their officers and

representatives.”

Some of the cases have further refined the public

policy set forth by these statutes. For example:

“Purpose of this chapter is to insure that full

information concerning financial and internal

administrative practices and procedures of

labor organization is available to union mem-

bers. U.S. v. Goad, 490 F.2d 1158 (C.A.8 (Mo.)

1974), cert. denied, 94 S. Ct. 3068, 417 U.S. 945,

41 L. Ed. 2d 665 (1974).”

Purpose of this chapter is to provide guaran-

ties of fair treatment to members of unions at

the hands of those with whom they deal,

including the labor organization itself. Wirtz v.

Teamsters Indus., 257 F.Supp. 784 (N.D. Ohio

1966).

11

These statutes do not contemplate that the goals to be

achieved be obtained solely by means of federal regula-

tion. Indeed, section 524 of Title 29 of the United States

Code expressly provides that these statutes are in no way

designed to diminish a state’s right to enforce its criminal

laws, particularly such laws directed at theft and em-

bezzlement. See also U.S. v. Haverlick, 195 F. Supp. 331

(N.D.N.Y. 1961), affirmed, 311 F.2d 229 (2d Cir. 1963),

which holds that 29 U.S.C. § 501c that sets forth the

penalties for embezzling union funds does not diminish

or impair a state’s right to enforce its criminal laws.

The decision of the Court of Appeal in this case

effectively forecloses the possibility of an employee who

is employed by a labor union from ever prosecuting an

action against his or her employer on the basis that the

termination was in violation of the public policy of the

state of California. It also dramatically limits the right of

any unionized employee who is employed pursuant to a

collective bargaining agreement to sue for wrongful ter-

mination in violation of public policy. Based on the Court

of Appeal decision if the employer asserts that there is a

need to interpret the collective bargaining agreement all

considerations of public policy are preempted. The Court

of Appeal’s opinion applies the doctrine of preemption

under the Labor Management and Reporting Act in such

a sweeping manner that all unionized employees in the

state of California have lost important rights and protec-

tions which are available to non-union employees. It has

eliminated any protection for employees of unions who

attempt to expose and root out corruption in their unions.

In addition to its expansion of the concept expressed in

Finnegan the Court of Appeal stated as follows with

12

respect to the goal of uniformity in interpretation of

collective bargaining agreements: “As far as Des Ermia,

the charge was that she was laid off in retaliation for her

reporting that her supervisor was misusing appellant's

funds. But because appellant asserted a legitimate reason

for her termination, interpretation of the CBA was

required. A state’s public policy, no matter how strongly

reflected by its statutes, is in itself an insufficient barrier

to preemption in the face of such a necessary interpreta-

tion.” In other words, the Court of Appeal’s ruling is if

the employer asserts a legitimate reason for the termina-

tion based on the collective bargaining agreement, even if

the trier of fact finds that such assertion is false, the

plaintiff’s cause of action is nevertheless preempted. The

Court should grant review to promote the policies under-

lying the Labor Management and Reporting Act and to

encourage and protect employees who come forward to

expose corruption in labor unions.

¢

LEGAL DISCUSSION

The Court of Appeal’s holding that Hansen’s claim is

preempted is based on its interpretation of the holding in

Finnegan v. Leu, 456 U.S. 431, 103 S. Ct. 1867, 72 L. Ed. 2d

239 (1982). In that case the Court held that a newly

elected union president could ‘fire an appointed business

agent who had campaigned for his opponent. The Court

held that the fired, appointed, business agent did not

have a cause of action for violation of his rights under the

LMRDA. The rationale of the court was that elected union

officials were entitled to select their own appointed staff

in order to carry out the policies for which they were

a a

13

elected thereby promoting union democracy. The Califor-

nia Supreme Court expanded on this ruling, holding a

state law cause of action for wrongful termination based

on breach of an implied contract not to terminate without

good cause was preempted for the same reason in Screen

Extra’s Guild, Inc. v. Superior Court, 51 Cal. 3rd 1017, 275

Cal. Rptr. 395 (1990).

Until the current decision, the California courts have

not dealt with the issue of preemption where the fired

union employee was elected and the reason for the termi-

nation was the exposure of corruption by that employee

of superior officers of the union. However, this issue has

been dealt with by the federal appellate courts. The most

closely related case to the facts in the case of Plaintiff

Hansen is the case of Bloom v. General Truck Drivers, 783

F.2d 1356 (9th Cir. 1986). The Bloom case involved a

wrongful termination action wherein the discharged

employee claimed he was fired for refusing to falsify

minutes of a meeting. The falsification of the minutes

would have had the effect of covering up improper

expenditures of union funds. (One of the precise issues in

this case.) The Ninth Circuit held that such state wrongful

termination actions were not preempted, and that such

actions implicated important state interests and had no

impact on the goals of the LMRDA in promoting union

democracy. Given this situation, the reasoning in Fin-

negan which was calculated to promote union democracy

did not apply. ;

The Court of Appeal’s decision in this case does not

promote the goal of union democracy as expressed in the

Labor Management Reporting Act and by this Court in

the Finnegan case. It has the opposite effect. It ignores the

14

fact that Hansen was originally an elected official and by

union fiat was turned into an at-will appointed official

during the term of office for which he was elected by the

union membership. The fact that Hansen was elected is of

paramount importance in the context of federal labor law.

This Court has so held in Sheet Metal Workers v. Lynn, 468

U.S. 347, 109 S. Ct. 639, 102 L. Ed. 2d 307 (1988). In this

case an elected union official was terminated for express-

ing views related to the financial management of the local

that were contrary to that of the trustee who was running

the local. The local had been placed in trusteeship

because of financial difficulties after the election of the

business agent in question. The trustee was newly

installed and had been placed there by the International.

Arguably, the trusteeship created a new entity as is the

contention made by the union here. However, the fact

that the business agent was elected by the membership

was deemed a critical fact by this Court. This, of course,

is consistent with the reasoning of Finnegan that deemed

the promotion of union democracy to be the underlying

purpose of the Labor Management Reporting Act.

The Court of Appeal, in its decision in this case, held

that Des Ermia’s claim was preempted because it would

involve an interpretation of the collective bargaining

agreement. This Court has addressed the preemption

doctrine as it relates to the inter-relationship between a

state cause of action for wrongful termination in violation

of public policy and securing uniformity under federal

law in the administration of collective bargaining agree-

ments in Lingle v. Norge Division, Magic Chef, 486 U.S. 399,

100 L. Ed. 2d 410, 108 S. Ct. 1877 (1988). This case did not

involve an employee who was terminated for exposing

el

15

union corruption. It involved an employee whose

employment was governed by a collective bargaining

agreement who was terminated for allegedly filing a false

worker’s compensation claim. The union processed a

grievance on her behalf and was successful in having her

reinstated with back-pay. She then filed a tort action,

which was permitted under Illinois law, for retaliatory

discharge by an employer for asserting her rights under

the Workers Compensation laws. The Supreme Court

held that such a tort action was not preempted under

section 301 of the L.M.R.A. The Court held that preemp-

tion is only appropriate where resolution of the state

claim depended on interpreting the terms and conditions

of the collective bargaining agreement. The reason for

preemption is to avoid conflicting decisions from the

various state courts in interpreting the terms and condi-

tions of collective bargaining agreements. The Court held

this was true even though the tort action and the arbitra-

tion would involve an analysis of the same facts. In

discussing why state law claims for discriminatory

employment practices are not preempted the Court stated

as follows:

“12[b] A collective-bargaining agreement may,

of course, contain information such as rate of

pay and other economic benefits that might be

helpful in determining the damages to which a

worker prevailing in a state-law suit is enti-

tled. See Baldracchi v Pratt & Whitney Aircraft

Div., United Technologies Corp., 814 F2d, at 106.

Although federal law would govern the inter-

pretation of the agreement to determine the

proper damages, the underlying state-law

claim, not otherwise pre-empted would stand.

Thus, as a general proposition, a state-law

16

claim may depend for its resolution upon both

the interpretation of a collective-bargaining

agreement and a separate state-law analysis

that does not turn on the agreement. In such a

case, federal law would govern the inter-preta-

tion of the agreement, but the separate state-

law analysis would not be thereby preempted.

As we said in Allis-Chalmers Corp. v Lueck, 471

US, at 211, 85 L. Ed. 2d 206, 105 S. Ct. 1904, ‘not

every dispute .. . tangentially involving a pro-

vision of a collective-bargaining agreement, is

preempted by Section 301...’”.

The Court of Appeal in this case essentially rejected

the reasoning of Lingle. In doing so, it has undermined

the purposes of the policies which are expressed in the

Labor Management Reporting Act.

¢

CONCLUSION

The rights of union members and employees to

ensure that their unions are run democratically and hon-

estly has been seriously undermined by the ruling in this

case. This Court should grant the Petition and once again

promote the policies designed by federal labor law to

assure the citizens of California that their unions are run

honestly and democratically.

Respectfully submitted,

Law OFFICES OF

SANFORD L. Horn

SANFORD L. Horn

Attorney for Petitioners

———————

App. 1

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

ROBERT HANSEN and |

MARLA DES ERMIA, |

Plaintiffs and Respondents, | wIIse

‘ | (Super. Ct. Nos.

| EC022470 and

AEROSPACE DEFENSE |

RELATED INDUSTRY |

|

|

DISTRICT LODGE 725, et al.,

Defendant and Appellant.

EC024833)

(Filed July 20, 2001)

APPEAL from judgments of the Superior Court of

‘Los Angeles County, Charles W. Stoll, Judge. Reversed.

Morrison & Foerster, Lisa Von Der Mehden and B.

Scott Silverman for Defendant and Appellant.

Sanford L. Horn for Plaintiffs and Respondents.

Allison Beck; Van Bourg, Weinberg, Roger & Rosen-

feld and David A. Rosenfeld for International Association

of Machinists & Aerospace Workers as Amicus Curiae on

behalf of Defendant and Appellant.

Appellant Aerospace Defense Related Industry Dis-

trict Lodge 725 of the International Association of Machi-

nists and Aerospace Workers (appellant) is a subordinate

unit of a labor union that represents aerospace workers.

App. 2

Respondents Robert Hansen and Marla Des Ermia are

two former employees of appellant who pursued wrong-

ful termination claims against it. Their cases were consol-

idated prior to trial. Hansen obtained a jury verdict in the

amount of $335,000 plus punitive damages of $17,782.

Des Ermia was awarded $368,000 plus punitive damages

in the amount of $17,782. Appellant appeals, We reverse

the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Des Ermia

Des Ermia was a clerical employee in appellant’s

Burbank office. In January 1996, she called appellant's

regional office and reported that her office manager, Bar-

bara Powley, had made unauthorized purchases with her

union credit card. Appellant’s president, Calvin Duncan,

reported the matter to the union office and an indepen-

dent investigator was assigned to the matter. The investi-

gator subsequently concluded that Powley had not

intentionally misused the union credit card. Duncan,

however, suspended Powley for 30 days without pay.!

Des Ermia was laid off in January 1997. The stated

reason given by appellant was that the Burbank office

was being closed and her position had been eliminated.

Des Ermia filed this lawsuit in January 1998, alleging that

she had been wrongfully terminated because of the Pow-

ley incident. She initially filed her suit in state court,

alleging causes of action for violation of public policy and

1 The circumstances surrounding Powley’s suspension

shall hereinafter be referred to as “the Powley incident.”

a

App. 3

intentional infliction of emotional distress. It was

removed to federal court. The United States District

Judge dismissed the emotional distress claim, finding it

to be preempted by the Labor Management Relations Act,

29 United States Code section 151, et seq. (LMRA), and

declined to exercise supplemental jurisdiction of the pub-

lic policy claim. Des Ermia’s First Amended Complaint,

refiled in state court on September 15, 1998, alleged only

a single cause of action for violation of public policy.

Hansen

Hansen was the Business Representative for appel-

lant. In or around February 1996, a one page leaflet was

distributed to union members criticizing the way in

which the Powley incident had been handled. The

authors of the leaflet identified themselves only as “the

Over-the-Hill Gang.” Approximately one month later,

another leaflet written by “the Over-the-Hill Gang” was

distributed, criticizing president Duncan about union

financial matters.

Hansen made comments regarding the leaflets to cer-

tain rank and file union members, essentially agreeing

with the accusations made in the leaflets, but he denied

writing the leaflets.

In May 1996, President Duncan terminated Hansen’s

employment, giving the reason that Hansen had made

disparaging remarks about appellant’s leadership and

had attempted to undermine Duncan’s authority.

Hansen filed his lawsuit on May 27, 1997, for wrong-

ful termination in violation of public policy. The com-

plaint was initially filed in state court, alleging causes of

App. 4

action for (1) discharge in violation of public policy; (2)

breach of employment agreement; (3) breach of the

implied covenant of good faith and fair dealing and (4)

intentional infliction of emotional distress.

The case was removed to United States District

Court. The District Court judge dismissed the claims for

breach of employment agreement and breach of the

implied covenant of good faith and fair dealing, finding

these claims were preempted by the Labor Management

Reporting and Disclosure Act of 1959, 29 United States

Code sections 401-531 (LMRDA). Upon remand to state

court, the emotional distress claim was dismissed on

summary judgment. Only the public policy cause of

action proceeded to trial.

Des Ermia’s case was consolidated with Hansen’s for

trial in October 1999. |

DISCUSSION

1. Preemption

Appellant contends, among other things, that both

Hansen’s and Des Ermia’s claims are preempted by fed-

eral law.

a. Hansen

The LMRDA guarantees to every member of a labor

organization the rights of equal voting, free speech and

assembly. (29 U.S.C. § 411.) It also makes it unlawful for a

union to “fine, suspend, expel, or otherwise discipline”

any of its members for exercising those rights (29 U.S.C.

App. 5

§ 529), and allows any person whose rights have been

violated to bring a lawsuit in federal district court. (29

U.S.C. § 412.) Appellant contends, therefore, that

Hansen’s claims against it are preempted by the LMRDA.

In support of its argument for preemption, appellant

relies primarily on Finnegan v. Leu (1982) 456 U.S. 431.

In Finneagan, supra, 456 U.S. 431, a union president

discharged his appointed business agents. The agents

filed suit, claiming a violation of the LMRDA. In holding

that the LMRDA did not protect the discharged agents,

the Supreme Court held that: “[T]he [LMRDA]’s overrid-

ing objective was to ensure that unions would be demo-

cratically governed, and responsive to the will of the

union membership as expressed in open, periodic elec-

tions. [Citation.] Far from being inconsistent with this

purpose, the ability of an elected union president to select

his own administrators is an integral part of ensuring a

union administration’s responsiveness to the mandate of

the union election. [J] . . . Nothing in the [LMRDA]

evinces a congressional intent to alter the traditional pat-

tern which would permit a union president under these

circumstances to appoint agents of his choice to carry out ©

his policies. [{] . . . in enacting Title I of the [LMRDA],

Congress simply was not concerned with perpetuating

appointed union employees in office at the expense of an

elected president’s freedom to choose his own staff.

Rather, its concerns were with promoting union democ-

racy, and protecting the rights of union members from

arbitrary action by the union or its officers.” (Id. at pp.

441-442.)

In Screen Extras Guild, Inc. v. Superior Court (1990) 51

Cal.3d 1017, a business agent appointed by the union was

——

App. 6

discharged and brought an action in state court against

the union for wrongful discharge, defamation and negli-

gent and intentional inflection of emotional distress. The

Supreme Court held that the action was preempted by the |

LMRDA, stating that: “Elected union officials must neces-

sarily rely on their appointed representatives to carry out

their programs and policies. As a result, courts have

recognized that the ability of elected union officials to

select their own administrators is an integral part of

ensuring that union administrations are responsive to the

‘will of union members. [Citations.]” (Id. at pp.

1024-1025.) The Court also noted: “[W]hile the Court of

Appeal through it important for the purposes of preemp-

tion analysis to distinguish between claims against a

union that relate to the purposes of the LMRDA and

claims that are routine disputes between an employer and

employee, the reverse is actually the case. It is important

not to base a preemption rule on such a subjective distinc-

tion. To do so would permit wrongful discharge claims

against unions by business agents that would inhibit the

ability of elected union officials to freely choose their

staffs and would thus impermissibly frustrate full realiza-

tion of the goals of the LMRDA. [Citation.]” (Id. at p.

1028.)

In Sheet Metal Workers v. Lynn (1989) 488 U.S. 347,

another discharged business agent brought a lawsuit

against a local union, claiming a violation of the LMRDA.

The Supreme Court held that Finnegan did not control

because the business agent was an elected, rather than an

appointed official. It stated: “The consequences of the

removal of an elected official are much different. To begin

with, when an elected official . . . is removed from his

App. 7

post, the union members are denied the representative of

their choice.” (Sheet Metal Workers, supra, at p. 355.) The

agent was therefore allowed to maintain his cause of

action under section 102 of the LMRDA.

Respondents argue that Lynn, not Finnegan or Screen

Extras, controls because Hansen became a business agent

pursuant to an election and was performing the same

duties for which he was elected when he was discharged.

This reasoning masks the true facts, however. Hansen

was initially elected to the post of business agent for

District 720 in 1993. In January 1994, the union was

reorganized and District 720 and a few other districts

were merged into District 725, the appellant in this

action. Calvin Duncan became the president of the new

District, and pursuant to its new by-laws, appointed

Hansen as its business representative.

The stated reasons given for Hansen’s termination

were his poor performance, and his insubordination in

criticizing the management of the District. Duncan had

the right to have an appointed business agent who sup-

ported his agenda. Accordingly, Hansen’s claim for

wrongful discharge was preempted by the LMRDA.

(Screen Extras, supra, 51 Cal.3d at p. 1032.)

b. Des Ermia

Section 301 of the Labor Management Relations Act

(LMRA), 29 United States Code section 185, preempts

2 Section 301(a) states: “Suits for violation of contracts

between an employer and a labor organization representing

App. 8

state law claims that are based directly on a collective

bargaining agreement or are substantially dependent on

an interpretation of a collective bargaining agreement.

(Wooddell v. Electrical Workers (1991) 502 U.S. 93, 101-102;

Aguilera v. Pirelli Armstrong Tire Corp. (9th Cir. 2000) 223

F.3d 1010, 1014.)

Des Ermia contends that her lawsuit only periph-

erally involves the collective bargaining agreement and

therefore should not be preempted for that reason. She

argues that interpretation of the collective bargaining

agreement was not necessary to a [sic] resolve the dis-

pute; the jury was not asked to analyze the contractual

terms of the agreement.

Des Ermia was initially an elected officer of the

union’s District Lodge 727. That Lodge and others were

merged to form District Lodge 725 (appellant) in January

1994 and Des Ermia lost her position. After the merger,

the appellant’s Office Manager offered Des Ermia work as

a clerical employee. As a clerical worker for appellant,

the terms and conditions of Des Ermia’s employment

were governed by a collective bargaining agreement

(CBA) between appellant, and a local branch of the Office

and Professional Employees International Union. The

CBA provided that in “all cases involving . . . layoffs,

seniority based on continuous service with the employer

employees in an industry affecting commerce as defined in [the

LMRA], 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 U.S.C. § 185, subd. (a).)

App. 9

shall govern.” The CBA also provided that seniority

would be by regional “Area.” When Des Ermia was ter-

minated, she was told that it was due to the lack of work

resulting from the closure of the Burbank office.

Des Ermia’s claim is that she was terminated for

pretextual reasons - that interpretation of the CBA was

only necessary to determine evidence relating to motive

and calculation of the proper measure of damages, citing

Lingle v. Norge Division of Magic Chef, Inc. (1988) 486 U.S.

399. In Lingle, a worker who filed a workers compensa-

tion claim was terminated because the employer felt the

claim was false. The worker’s union filed a grievance

which was sent to arbitration pursuant to the collective

bargaining agreement. An arbitrator ruled in the

worker’s favor and ordered her reinstated. She then filed

a wrongful discharge suit which was removed to federal

court. The employer filed a motion to dismiss on preemp-

tion grounds. The United States Supreme Court held that

although the dispute involved a factual inquiry into the

conduct and motivation of the employer, it did not

require the court to interpret the collective bargaining

agreement and held that there was no preemption. (Id. at

pp. 409-410.)

One of Des Ermia’s main allegations was that appel-

lant violated the CBA by laying her off before other, less

senior, employees. Des Ermia argued that her “seniority

date” under Article 16 of the CBA was January 1, 1994,

the date which she became Secretary-Treasurer for Dis-

trict Lodge 727. Appellant argued that her seniority date

was March 1994, the date that she became a clerical

employee for the Burbank office. Des Ermia also argued

|

App. 10

that the District violated the CBA by denying her a posi-

tion in another area office, by failing to recall her after

her layoff when another clerical employee quit and that

she was wrongfully denied vacation and sick leave pay.

In order to find there was a pretext for laying her off,

the jury necessarily had to find that she was laid off out

of seniority order, or that appellant violated the provi-

sions of the CBA. Interpretation of the CBA was therefore

a prerequisite to resolution of her claim. As a result, her

claim was preempted by the LMRA.

c. Effect of District Court’s Prior Ruling

Both Hansen and Des Ermia argue that because the

United States District Court only dismissed certain causes

of action and remanded the remainder of each case back

to state court, the remanded causes of action cannot now

be deemed federal causes of action. The fact that the

federal court did not retain each case at the pleading case,

however, does not constitute a pronouncement that the

remaining causes of action were state court causes of

action. “When a federal court grants a motion for remand

[to the state court], it does nothing more than determine

the complaint fails, either directly or by operation of the

‘artful- pleading’ doctrine, to state a question arising

under federal law. It does not determine whether a pre-

emption defense can be successfully offered in state court

when the entire case is considered.” (Moreau v. San Diego

Transit Corp. (1989) 210 Cal.App.3d 614, 621.)

‘laa ke ag

App. 11

2. Violation of Public Policy

Respondents contend that because their claims

involve alleged violation of public policy, the preemption

doctrine does not apply. With respect to Hansen, they

argue that there is a substantial state interest in ensuring

that employees are not discharged because they voice

their opposition to management policy. In Hansen’s case,

however, he was employed as a business agent, and

therefore was a representative of union management. It

was therefore clearly within the president's rights to dis-

charge him for voicing his contrary views.

Hansen relies on Bloom v. General Truck Drivers (9th

Cir. 1986) 783 F.2d 1356, claiming that one of the reasons

he was discharged was because he refused to conceal the

facts surrounding Powley’s embezzlement of union

funds. This allegation was contained in his complaint;

however Hansen did not establish at trial that he had

reported criminal behavior or that he refused to aid and

abet any criminal acts. In addition, Hansen alleged that

Powley had not been bonded. However, any evidence on

this issue was excluded at trial. All Hansen was able to

prove at trial was that he was discharged because of his

remarks criticizing Duncan’s performance. For this rea-

son, Bloom is inapposite. "

As far as Des Ermia, the charge was that she was laid

off in retaliation for her reporting that her supervisor was

misusing appellant’s funds. But because appellant

asserted a legitimate reason for her termination, inter-

pretation of the CBA was required. “A state’s public

policy, no matter how strongly reflected by its statutes, is

in itself an insufficient barrier to preemption in the face

App. 12

of such a necessary interpretation. [Citation.]” (Moreau v.

San Diego Transit Corp., supra, 210 Cal.App.3d at p. 627.)

DISPOSITION

The judgments are reversed. The matter is remanded

to the superior courts with instructions to dismiss the two

lawsuits. (Allis-Chalmers Corp. v. Lueck (1985) 471 U.S. 202,

220.) The parties are to bear their own costs.

CERTIFIED FOR PUBLICATION

HASTINGS, J.

We concur:

VOGEL (C5S.), PJ.

EPSTEIN, J.

TE ee ee a ee Pee

Sa

SPB AAP OENE I DFO HOGS OO

App. 13

SUPERIOR COURT OF CALIFORNIA,

COUNTY OF LOS ANGELES

ROBERT T. HANSEN,

Plaintiff, EC 22470

vs

AEROSPACE DEFENSE

RELATED, INDUSTRY

DISTRICT LODGE 725

OF THE INTERNATIONAL

ASSOCIATION OF

MACHINISTS AND

AEROSPACE WORKERS, et al

Defendant.

JUDGMENT ON

VERDICT

(Filed June 10, 1999)

Nee ee eae eee ee ae OOS

This action came on regularly for trial on May 26, 1999; in

Department NCD of the Superior Court, the Honorable

Charles W. Stoll Judge Presiding: the plaintiff appearing

by attorneys, SANFORD L. HORN; and the defendant

appearing by attorneys MORRISON & FOERSTER by: B.

Scott Silverman and Lisa Von Der Mehden.

A jury of 12 persons was regularly impaneled and sworn

and agreed to try the cause. Witnesses were sworn and

testified. After hearing the evidence and argument of

counsel, the jury was duly instructed by the Court and

the cause was submitted to the jury with directions to

return a verdict on special issues. The jury deliberated

and thereafter returned into court with its verdicts consis-

ting of the special issues submitted to the jury and the

answers given thereto by the jury, which said verdict was

in words as follows, to wit:

App. 14

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

ROBERT T. HANSEN, |

Plaintiff, Case No. EC 022470

Vv.

AEROSPACE DEFENSE SPECIAL VERDICT

RELATED INDUSTRY FORM AS TO

DISTRICT LODGE 725 OF | PLAINTIFF MARLA

THE INTERNATIONAL DES ERMIA

ASSOCIATION OF

MACHINISTS AND

AEROSPACE WORKERS;

CALVIN DUNCAN;

BARBARA POWLEY; and

DOES 1-100 inclusive,

Defendants.

(Filed June 10, 1999)

AND CONSOLIDATED

CASE

We, the jury in the above-entitled action, find the

following Special Verdict on the questions submitted to us:

WRONGFUL TERMINATION IN VIOLATION OF PUB-

LIC POLICY: PLAINTIFF MARLA DES ERMIA

QUESTION NO. 1:

Did Plaintiff Marla Des Ermia have a reasonable and

good faith belief that another employee committed theft

or embezzlement against the union?

ANSWER: Yes X No

App. 15

If you answered Question No. 1 “yes,” answer Ques-

tion No. 2. If you answered “no,” please sign, date, and

return this form.

QUESTION NO. 2:

Did Marla Des Ermia responsibly report to union

officials or the membership that another employee com-

mitted theft or embezzlement against the union?

ANSWER: Yes Xx No

If you answered Question No. 2 “yes,” answer Ques-

tion No. 3. If you answered “no,” please sign, date, and

return this form.

QUESTION NO. 3:

Did Calvin Duncan, in making the decision to lay off

Marla Des Ermia, know or believe that Ms. Des Ermia

had reported that another employee committed theft or

embezzlement against the union?

ANSWER: Yes X No

If you answered Question No. 3 “yes,” answer Ques-

tion No. 4. If you answered “no,” please sign, date, and

return this form.

QUESTION NO. 4:

Was the defendant's stated legitimate reason for ter-

minating Marla Des Ermia’s employment not its true

reason, but a pretext to retaliate against Ms. Des Ermia

App. 16

for responsibly reporting that another employee commit-

ted theft or embezzlement against the union?

ANSWER: Yes X No

If you answered Question No. 4 “yes,” answer Ques-

tion No. 5. If you answered “no,” please sign, date, and

return this form.

QUESTION NO. 5:

Did District Lodge 725’s conduct in terminating Ms.

Des Ermia’s employment cause her damages?

ANSWER: Yes X No

If you answered Question No. 5 “yes,” answer Ques-

tion No. 6. If you answered “no,” please sign, date, and

return this form.

QUESTION NO. 6:

If you are answering this question, you have found

District Lodge 725 liable for wrongful termination in

violation of public policy as to Marla Des Ermia. Taking

into account Ms. Des Ermia’s obligation to make reason-

able efforts to find comparable employment, what is the ~

total amount of economic and non-economic damages, if

any, caused by District Lodge 725 in terminating Ms. Des

Ermia’s employment?

ANSWER: (a) Economic $ 68,000.00

(b) Non-economic §$ 300,000.00

App. 17

QUESTION NO. 7:

Did Plaintiff Marla Des Ermia prove by clear and

convincing evidence that District Lodge 725, by the con-

duct of an officer, director, or managing agent, acted with

oppression or malice towards her in terminating her

employment?

ANSWER: Yes X No

Sign, date, and return this verdict form.

Dated: 6/10/99

/s/ David E. Rush

Signature of Jury Foreperson

App. 18

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

ROBERT T. HANSEN,

Case No. EC 022470

Plaintiff,

V.

AEROSPACE DEFENSE SPECIAL VERDICT

RELATED INDUSTRY FORM AS TO

DISTRICT LODGE 725 OF | PLAINTIFF ROBERT

THE INTERNATIONAL HANSEN

ASSOCIATION OF

MACHINISTS AND .

AEROSPACE WORKERS; (Filed June 10, 1999)

CALVIN DUNCAN:

BARBARA POWLEY: and

DOES 1-100 inclusive,

Defendants.

AND CONSOLIDATED

CASE

We, the jury in the above-entitled action, find the

following Special Verdict on the questions submitted to us:

WRONGFUL TERMINATION IN VIOLATION OF PUB-

LIC POLICY: PLAINTIFF ROBERT HANSEN

QUESTION NO. 1:

Did Plaintiff Robert Hansen have a reasonable and

good faith belief that another employee committed theft

or embezzlement against the union?

ANSWER: Yes X No

App. 19

If you answered Question No. 1 “yes,” answer Ques-

tion No. 2. If you answered “no,” please sign, date, and

return this form.

QUESTION NO. 2:

Did Robert Hansen responsibly report to union offi-

cials or the membership that another employee commit-

ted theft or embezzlement against the union?

ANSWER: Yes X No

If you answered Question No. 2 “yes,” answer Ques-

~ tion No. 3. If you answered “no,” please sign, date, and

return this form.

QUESTION NO. 3:

Did Calvin Duncan, in making the decision to termi-

nate Plaintiff Robert Hansen’s employment, know or

believe that Mr. Hansen had reported that another

employee committed theft or embezziement against the

union?

ANSWER: Yes X No

If you answered Question No. 3 “yes,” answer Ques-

tion No. 4. If you answered “no,” please sign, date, and

return this form.

QUESTION NO. 4:

Was the defendant’s stated legitimate reason for ter-

minating Robert Hansen’s employment not its true rea-

son, but a pretext to retaliate against Mr. Hansen for

App. 20

responsibly reporting that another employee committed

theft or embezzlement against the union?

ANSWER: Yes X No

If you answered Question No. 4 “yes,” answer Ques-

tion No. 5. If you answered “no,” please sign, date, and

return this form.

QUESTION NO. 5:

Did District Lodge 725’s conduct in terminating Mr.

Hansen cause him damages?

ANSWER: Yes X No

If you answered Question No. 5 “yes,” answer Ques-

tion No. 6. If you answered “no,” please sign, date, and

return this form.

QUESTION NO. 6:

If you are answering this question, you have found

District Lodge 725 liable for wrongful termination in

violation of public policy as to Robert Hansen. Taking

into account Mr. Hansen’s obligation to mitigate his dam-

ages, what is the total amount of economic and non-

economic damages, if any, caused by District Lodge 725

in terminating Mr. Hansen’s employment?

ANSWER: (a) Economic $ 185,000.00

(b) Non-economic $ 150,000.00

App. 21

QUESTION NO. 7:

Did Plaintiff Robert Hansen prove by clear and con-

vincing evidence that District Lodge 725, by the conduct

of an officer, director, or managing agent, acted with

oppression or malice towards her in terminating her

employment?

ANSWER: Yes X No

Sign, date, and return this verdict form.

Dated: 6/10/99

/s/ David E. Rush

Signature of Jury Foreperson

It appearing by reason of said verdict that plaintiff,

Robert T. Hansen, is entitled to judgment against Defen-

dant, Aerospace Defense Related Industry District Lodge

725 of the International Association of Machinists and

Aerospace Workers.

Now, therefore, it is ordered adjudged and decreed that

plaintiff, Robert T. Hansen, shall have and recover by

way of his Complaint against defendant, Aerospace

Defense Related Industry District Lodge 725 of the Inter-

national Association of Machinists and Aerospace

Workers the sum of $185,000.00 as Economic damages

and $150,000.00 as Non-economic damages plus

$17,782.00 as Punitive damages for a total of $352,782.00

and further, plaintiff, Robert T. Hansen, is entitled to

recover costs and disbursements amounting to the sum of

$ 7,712.56

It appearing by reason of said verdict that plaintiff, Marla

Des Ermia, is entitled to judgment against Defendant,

Aerospace Defense Related Industry District Lodge 725 of

App. 22

the International Association of Machinists and Aero-

space Workers.

Now, therefore, it is ordered adjudged and decreed that

plaintiff, Marla Des Ermia, shall have and recover by way

of his [sic] Complaint against defendant, Aerospace

_ Defense Related Industry District Lodge 725 of the Inter-

national Association of Machinists and Aerospace

Workers the sum of $68,000.00 as Economic damages and

$300,000.00 as Non-economic damages plus $17,782.00 as

Punitive damages for a total of $385,782.00 and further,

plaintiff, Marla Des Ermia, is entitled to recover costs and

disbursements amounting to the sum of $

Dated: 6-10-99 /s/ Charles W. Stoll

CHARLES W. STOLL

SUPERIOR COURT JUDGE

App. 23

Court of Appeal, Second Appellate District,

Division Four - No. B135132

$100223

IN THE SUPREME COURT OF CALIFORNIA

En Banc

(Filed Oct. 31, 2001)

MARLA DES ERMIA et al., Plaintiffs and Respondents,

i Vv.

AEROSPACE DEFENSE RELATED INDUSTRY

DISTRICT LODGE 725,

Defendant and Appellant.

Petition for review DENIED.

/s/ GEORGE

Chief Justice

App. 24

29 U.S.C. § 185. Suits by and against labor organiza-

tions

(a) Venue, amount, and citizenship

Suits for violation of contracts between an employer

and a labor organization representing employees in an

industry affecting commerce as defined in this chapter, 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 contro-

versy or without regard to the citizenship of the parties.

(b) Responsibility for acts of agent; entity for pur-

poses of suit; enforcement of money judgments

Any labor organization which represents employees

in an industry affecting commerce as defined in this

chapter and any employer whose activities affect com-

merce as defined in this chapter shall be bound by the

acts of its agents. Any such labor organization may sue or

be sued as an entity and in behalf of the employees whom

it represents in the courts of the United States. Any

money judgment against a labor organization in a district

court of the United States shall be enforceable only

against the organization as an entity and against its

assets, and shall not be enforceable against any individ-

ual member or his assets.

(c) Jurisdiction

For the purposes of actions and proceedings by or

against labor organizations in the district courts of the

United States, district courts shall be deemed to have

App. 25

jurisdiction of a labor organization (1) in the district in

which such organization maintains its principal office, or

(2) in any district in which its duly authorized officers or

agents are engaged in representing or acting for

employee members.

(d) Service of process

The service of summons, subpena, [sic] or other legal

process of any court of the United States upon an officer

or agent of a labor organization, in his capacity as such,

shall constitute service upon the labor organization.

(e) Determination of question of agency

For the purposes of this section, in determining

whether any person is acting as an “agent” of another

- person so as to make such other person responsible for

his acts, the question of whether the specific acts per-

formed were actually authorized or subsequently ratified

shall not be controlling.

(June 23, 1947, c. 120, Title III, § 301, 61 Stat. 156.)

29 U.S.C. § 401. Congressional declaration of findings,

purposes, and policy

(a) Standards for labor-management relations

The Congress finds that, in the public interest, it

continues to be the responsibility of the Federal Govern-

ment to protect employees’ rights to organize, choose

App. 26

their own representatives, bargain collectively, and other-

wise engage in concerted activities for their mutual aid or

protection; that the relations between employers and

labor organizations and the millions of workers they

represent have a substantial impact on the commerce of

the Nation; and that in order to accomplish the objective

of a free flow of commerce it is essential that labor

organizations, employers, and their officials adhere to the

highest standards of responsibility and ethical conduct in

administering the affairs of their organizations, partic-

ularly as they affect labor-management relations.

(b) Protection of rights of employees and the public

The Congress further finds, from recent investiga-

tions in the labor and management fields, that there have

been a number of instances of breach of trust, corruption,

disregard of the rights of individual employees, and other

failures to observe high standards of responsibility and

ethical conduct which require further/and supplemen-

tary legislation that will afford necessary protection of

the rights and interests of employees and the public

generally as they relate to the activities of labor organiza-

tions, employers, labor relations consultants, and their

officers and representatives.

(c) Necessity to eliminate or prevent improper prac-

tices

The Congress, therefore, further finds and declares

that the enactment of this chapter is necessary to elimi-

nate or prevent improper practices on the part of labor

organizations, employers, labor relations consultants, and

PS fee ne eeaee F

App. 27

their officers and representatives which distort and defeat

the policies of the Labor Management Relations Act, 1947,

as amended [29 U.S.C.A. § 141 et seq.], and the Railway

Labor Act, as amended [45 U.S.C.A. § 151 et seq.], and

have the tendency or necessary effect of burdening or

obstructing commerce by (1) impairing the efficiency,

safety, or operation of the instrumentalities of commerce;

(2) occurring in the current of commerce; (3) materially

affecting, restraining, or controlling the flow of raw mate-

rials or manufactured or processed goods into or from the

channels of commerce, or the prices of such materials or

goods in commerce; or (4) causing diminution of employ-

ment and wages in such volume as substantially to

impair or disrupt the market for goods flowing into or

from the channels of commerce.

—_

29 U.S.C. § 524. Effect on State laws

Nothing in this chapter shall be construed to impair

or diminish the authority of any State to enact and

enforce general criminal laws with respect to robbery,

bribery, extortion, embezzlement, grand larceny, burglary,

arson, violation of narcotics laws, murder, rape, assault

with intent to kill, or assault which inflicts grievous

bodily injury, or conspiracy to commit any of such crimes.

App. 28

LAW OFFICES OF SANFORD L. HORN

SANFORD L. HORN, ESQ., SBN 39686

301 North Lake Avenue, Suite 320

Pasadena, CA 91101

Telephone: (626) 795-7295

Attorneys for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

ROBERT T. HANSEN,

Plaintiff, CASE NO. EC 022470

VS.

AEROSPACE DEFENSE

RELATED INDUSTRY

DISTRICT LODGE 725

OF THE

)

)

)

)

) NOTICE OF ENTRY OF

)

)

)

INTERNATIONAL (Filed June 15, 1999)

)

)

)

)

)

)

)

)

JUDGMENT

ASSOCIATION OF

MACHINISTS AND

AEROSPACE WORKERS,

Defendants.

AND CONSOLIDATED

CASE

TO AEROSPACE DEFENSE RELATED INDUSTRY

DISTRICT LODGE 725, etc., et al., defendants, and to

their attorney of record:

NOTICE IS HEREBY GIVEN that on June 10, 1999,

judgment was entered in the above-entitled action in

favor of plaintiffs ROBERT T. HANSEN and MARLA DES

App. 29

ERMIA against AEROSPACE DEFENSE RELATED

INDUSTRY DISTRICT LODGE 725 OF THE INTERNA-

TIONAL ASSOCIATION OF MACHINISTS AND AERO-

SPACE WORKERS.

Dated: June 14, 1999

LAW OFFICES OF

SANFORD L. HORN

by /s/ Sanford L. Horn

SANFORD L. HORN

Attorney for Plaintiffs