Opposition Brief — California Electric Co. v. Briley

Suprem? Court, U.S

91°12 22

FEB 24 1992

No. | ose p<

i tl eli leant

In the Supreme Court

OF THE

United States

OCTOBER TERM, 199]

CALIFORNIA ELECTRIC COMPANY,

A California Corporation,

Petitioner.

VS.

PATRICK BRILEY; MANUEL CADENA; JOHN DION:

LELAND KNISLEY; JOSE MUNOZ; ROBERT PA7:

RAYMOND TABER; JOHN WHELPLEY

Respondents.

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

ROBERT E. JESINGER

(Counsel of Record)

Wy Lie, MCBRIDE, JESINGER, SURI

& PLATTEN

101 Park Center Plaza, Suite 100]

San Jose, California 95113

Telephone: (408) 297-9172

Atturneys for Respondents

Patrick Briley, et al.

February 20, 1992

FRANCIS(

BOWNE - SAN

QUESTIONS PRESENTED

Respondents disagree with Petitioner’s presentation of the

questions. The correct statement of the questions presented are

the following:

Does federal labor law preempt a state tort action against

individual union employees based on a violation of state law

which is intertwined with or depends substantially upon consider-

ation of the terms of the collective bargaining agreement under

which the employees perform work?

Does federal labor law immunize individual union employees

from liability for a breach of the collective bargaining agreement?

il

TABLE OF CONTENTS

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STATUTORY PROVISIONS INVOLVED............

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FEDERAL PREEMPTION OF STATE LAW CLAIMS

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FEDERAL LABOR LAW SHIELDS INDIVIDUAL

UNION MEMBERS FROM LIABILITY FOR DAM-

AGES UNDER SECTION 301 OF THE LMRA.....

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TABLE OF AUTHORITIES

Cases

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 212 (1985) ..

Complete Auto Transit v. Reis, 451 U.S. 401, 417 (1981) ..

Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal.Rptr.

Dee eee. Fee ee, STS, SIO CEPCO) 2.0 cece cece eee

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

a Ss ee ee er eres i ee i

Statutes

29 US.C. § 158(b)(4)(i)(B) and (D); 29 USC.

§ (b) (4) (ii)(B) and (D); Section 8(b)(4)(i)(B) and

(D), 8(b) (4) (ii) (B) and (D) of the Labor-Management

SE a ee ee a

29 U.S.C. § 185, Section 301 of the Labor Management

EES SX GS re a

29 U.S.C. § 187, section 303 of the LMRA...........-.

29 U.S.C. § 158, Section 7 of the National Labor Relations

Ne ee a i a 6 Gh ao oo We Re ED 880 8

California Labor Code section 2922...............++-5-

California Labor Code sections 2854 ................--.

California Labor Code sections 2865 ..............--5--

Page

No.

In the Supreme Court

OF THE

United States

OCTOBER TERM, 1991

CALIFORNIA ELECTRIC COMPANY,

A California Corporation,

Petitioner,

VS.

PATRICK BRILEY; MANUEL CADENA; JOHN DION;

LELAND KNISLEY; JOSE MUNOZ; ROBERT PAZ;

RAYMOND TABER; JOHN WHELPLEY

Respondents.

OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

Respondents respectfully request the Court to deny the Petition

for Writ of Certiorari to review the opinion and judgment of the

United States Court of Appeal for the Ninth Circuit in California

Electric Company, a California Corporation v. Patrick Briley;

Manual Cadena; John Dion; Leland Knisley; Jose Munoz; Robert

Paz; Raymond Taber; John Whelpley, and Does | through 50.

STATUTORY PROVISIONS INVOLVED

Petitioner has omitted a relevant provision of the California

Labor Code. That statute is California Labor Code section 2922,

which reads as follows:

Section 2922.

An employment, having no specified term, may be termi-

nated at the will of either party on notice to the other.

—

2

STATEMENT OF THE CASE

The present case presents no important issues for consideration

by the Court. This case involves state law tort claims, the

evaluation of which is inextricably intertwined with consideration

of the terms of a collective bargaining agreement and is therefor

preempted by Section 301 of the Labor Management Relations

Act of 1947 (hereafter “LMRA”), 29 U.S.C. § 185. Further-

more, federal law shields individual union members from liability

for breaches of the collective bargaining agreement. The Ninth

Circuit followed well-established precedent of this Court in hold-

ing that Section 301 preempts the state law causes of action and

in dismissing the action against individual union members.

FACTS BELOW

Petitioner fails to mention the following pertinent facts. For

several years, Petitioner had been party to a collective bargaining

agreement with the International Brotherhood of Electrical

Workers, Local Union No. 234 (hereafter “Local 234”). Respon-

dents were California Electric Company employees working

under the terms of that agreement. The collective bargaining

agreement contained a no-strike provision (§j 1.04); a provision

for grounds for termination (§] 2.05); and a provision for quitting

employment and notice thereof by the employee to the employer

(] 3.06(c)). (See Appendix “A’’).

On October 9, 1986, Respondents walked off the job and quit

their employment with California Electric Company. This walk

off occurred in the context of a long-standing dispute over job

assignments. Petitioner had a time and materials contract to

provide electrical construction services to Basic American Foods,

Inc. (hereinafter “Basic’’). Local 234 members were employed

by Petitioner to provide electrical services to Basic. However,

Basic also assigned electrical work to its electrician employees

represented by the International Brotherhood of Teamsters, as

well as employees of other outside contractors. Local 234 mem-

bers had a long standing dispute over these assignments.

After Respondents walked off their jobs on October 9, 1986,

Petitioner filed breach of contract grievances against the Union

3

and the employees, alleging that the Union and the employees

had violated the no-strike clause of the collective bargaining

agreement. These grievances are still pending.

Petitioner did not file any unfair labor practice charges with the

National Labor Relations Board. Instead, on February 12, 1987,

Petitioner filed a lawsuit in federal court against Local 234 and

the International union pursuant to Section 303 of the LMRA, 29

U.S.C. § 187. The complaint alleged that Petitioner suffered

damages as a result of the walk-off and that Local 234, the

International Union and its agents (Respondents and others)

violated Section 8(b)(4)(i)(B) and (D), and 8(b) (4) (ii) (B)

and (D) of the Labor-Management Relations Act, as amended,

29 US.C. §158(b)(4)(i)(B) and (D); 29 USC.

§ 158(b) (4) (ii) (B) and (D).

On May 28, 1987, the district court dismissed the complaint

without prejudice. Subsequently on July 31, 1987, Petitioner filed

this complaint alleging state tort claims against Respondents in

state court. Petitioner alleged that Respondents owed Petitioner a

duty of ordinary care under California Labor Code sections 2854

and 2865. Petitioner also alleged that Respondents specifically

owed Petitioner a duty not to quit without reasonable notice under

California Labor Code section 2922. Respondents removed the

action to federal district court.

In upholding the district courts’ dismissal of the complaint, the

Ninth Circuit concluded that Section 301 of the LMRA preempts

Petitioner's claims because definition of any of the state statutory

duties set forth in California Labor Code Section 2922, as well as

Sections 2854 and 2865, depended substantially and inextricably

upon consideration of the collective bargaining agreement. The

Ninth Circuit also held that Respondents were immune from

liability under Section 301 of the LMRA.

4

ARGUMENT

I

SUMMARY

The Ninth Circuit followed well-established precedent of this

Court in holding that Section 301 preempts Petitioner’s state law

tort claims. The state statutes involved are applicable to cases of

at-will employment and are thus superseded by the collective

bargaining agreement. Determination of any state statutory duty

depends upon consideration of the labor agreement. Furthermore,

the Ninth Circuit followed well-established precedent of this

Court in holding that federal law shields individual union mem-

bers from liability for breaches of the collective bargaining agree-

ment, where their actions are unauthorized by the agreement and

unprotected by Section 7 of the National Labor Relations Act, 29

U.S.C. § 158.

II

FEDERAL PREEMPTION OF STATE LAW CLAIMS

As the Ninth Circuit held, Section 301 of the LMRA preempts

any state law cause of action where the “evaluation of the tort

claim is inextricably intertwined with consideration of the terms

of the labor contract.” Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 212 (1985); Lingle v. Norge Division of Magic Chef, Inc.,

486 U.S. 399 (1988). In this case, the state tort claims were

dependent on an analysis of the collective bargaining agreement.

In scrutinizing the state statutes asserted by Petitioner, the Ninth

Circuit reasoned that California Labor Code section 2922 creates

a presumption of at-will employment; however that presumption

may be superseded by contract. Foley v.Interactive Data Corp., 47

Cal.3d 654, 254 Cal.Rptr. 211, 214, 765 P.2d. 373, 376 (1988).

Thus, the collective bargaining agreement displaced the statutory

presumption of at-will employment; any requirement of Labor

Code Section 2922 for notice of termination is therefore inappli-

cable. Analysis of the employee’s duties upon termination under

State statutes, including the duty of care under the Labor Code

sections 2854 and 2865, must depend upon interpretation of the

5

labor contract, which in fact includes termination provisions in

{| 3.06(c).

As the Ninth Circuit made clear, the Labor Code sections cited

by Petitioner do not impose “minimal standards” to be “applied

to unionized and non-unionized employees alike,” as Petitioner

asserts. Petitioner’s basic argument is that § 301 should not have

preemptive force because Petitioner’s complaint alleged state law

claims, rather than breach of labor contract claims. Under Peti-

tioner’s argument, tailoring a complaint to omit any reference to a

collective bargaining agreement would preclude preemption under

§ 301. That is not the intent of the preemption principle. The

court must look beyond artful framing of the complaint to

determine whether evaluation of the state claims is inextricably

intertwined with consideration of the labor contract. A/lis-Chal-

mers Corp. v. Lueck, supra, 471 U.S. at 212. The labor contract in

this case included a no-strike provision, a termination provision,

and a provision for quitting employment and for notice to the

employer. Thus, these claims were intertwined with the contract

and were therefore preempted under Section 301 of the LMRA.

FEDERAL LABOR LAW SHIELDS INDIVIDUAL UNION

MEMBERS FROM LIABILITY FOR DAMAGES UNDER

SECTION 301 OF THE LMRA

The Supreme Court has held that individual union members

“acting not in behalf of the union but in their personal and

nonunion capacity” are immune from suits for damages under

§ 301 even if their conduct was unauthorized by the union and in

violation of a collective bargaining agreement. Complete Auto

Transit v. Reis, 451 U.S. 401, 417 (1981). Petitioner attempts to

distinguish Complete Auto Transit from the case at hand by

asserting that § 301 and § 303 requires “concerted activity” in

order to invoke immunity for individuals from damage actions.

There is no such requirement under federal labor law, and no

logic to Petitioner’s argument. Clearly, if only one employee took

an unauthorized action against the employer and walked off the

job, that action would not constitute “concerted activity,” but

6

would still be immune from liability under Complete Auto

Transit.

Petitioner's argument regarding immunity is simply another

attempt to argue that its state law claims shouid not be pre-

empted. Petitioner does not argue that Respondents should be

liable for violations of the collective bargaining agreement, but

rather insists that they “should not be immunized for their

commission of State torts.” Petitioner's Brief, p.18 (emphasis

added). This argument has already been addressed and disposed

of in the argument on preemption.

CONCLUSION

For all the foregoing reasons, Respondents respectfully request

the Court to deny the Petition for Writ of Certiorari.

Dated: February 20, 1992

Respectfully submitted,

Wry Lie, MCBRIDE, JESINGER SURI

& PLATTEN

Robert E. Jesinger, Counsel of

Record

Attorneys for Respondents

Patrick Briley, et al

A-|

APPENDIX “A”

FROM INSIDE AGREEMENT BETWEEN IBEW

LOCAL UNION NO. 234

AND

MONTEREY BAY CALIFORNIA CHAPTER

N.E.C.A., INC.

!.04 There shall be no stoppage of work either by strike or

lockout because of any proposed changes in this Agreement or

dispute over matters relating to this Agreement. All such matters

must be handled as stated herein.

2.05 Management Rights. The Union understands the Em-

ployer is responsible to perform the work required by the owner.

The Employer shall therefore have no restrictions, except those

specifically provided for in this collective bargaining Agreement

in planning, directing, and controlling the operation of all his

work; in deciding the number and kind of Employees to properly

perform the work; in hiring and laying off Employees; in transfer-

ring Employees from job to job within the local union’s geograph-

ical jurisdiction; in determining the need and number as well as

the person who will act as foreman; in requiring all Employees to

observe the Employer’s and/or owner’s rules and regulations not

inconsistent with this Agreement; in requiring all Employees to

observe all safety regulations; and in discharging Employees for

proper cause. ~°

3.06 Payday—Termination Slips.

(c) 1. If an Employee provides seventy-two hours prior no-

tice of his intention to quit, the Employee is entitled to his wages

at the time of quitting.

2. In the event an Employee quits without prior notifica-

tion, the Employer shall pay all wage due within seventy-two (72)

hours or the next payday whichever occurs first. The check shall

be mailed to the address provided by the Employee unless other

arrangements are agreed upon with the Employee, however, the

intent of this section shall not be abrogated or ignored.