# Petition for Writ of Certiorari — Sieu Mei Tu v. Southern Pacific Transportation Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1878%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1993 - **Citation:** 507 U.S. 918 ## Text 92-1096 [Tre THE SUPREME COURT OF THE UNITED STATES | ODEO BRE 9992 October Term, 1992 NO: OFFICE OF THE CLERK SIEU MEI TU, JOSEPH Z. TU PLAINTIFFS, APPELLANTS, APPLICANTS VS. UNITED STATES COURT OF APPEALS NINTH CIRCUIT me ee ee ee ee ee ee ee ee eee” RESPONDENT SOUTHERN PACIFIC TRANSPORTATION ) COMPANY; ATCHISON, TOPEKA, SANTA FE ) RAILROAD COMPANY; PACIFIC FRUIT ) EXPRESS COMPANY; T. ELLEN; E.E.CLARK; ) D. W. FEND; T. R. ASHTON; DOE DEFEN- _) DANTS ONE TO TWO THOUSAND; WHITE ) COMPANY; BLACK CORPORATION; BROTHER- ) HOOD OF RAILWAY AIRLINE AND STEAMSHIP ) CLERKS; R. B. BRACKBILL;J. M. BALOVICH;) SANTA FE SOUTHERN PACIFIC CORP ) REAL PARTIES IN INTEREST ) APPLICATION FOR WRIT OF CERTIORARI TO REVIEW MEMORANDUM OF DECISION OF UNITED STATES COURT OF APPEAL, NINTH CIRCUIT, FILED JUNE 1, 1992 ( RULE 10 (1) (a) (c)) LEE J. KUBBY, INC. A PROFESSIONAL CORPORATION BOX 60485 Sunnyvale, CA 94086-0485 (415) 691-9331 Attorney for Plaintiffs Appellants Applicants SIEU MEI TU and JOSEPH Z. TU . THE SUPREME COURT OF THE UNITED STATES OF AMERICA October Term, 1992 NO: SIEU MEI TU, JOSEPH Z. TU PLAINTIFFS, APPELLANTS, APPLICANTS vs. UNITED STATES COURT OF APPEALS NINTH CIRCUIT RESPONDENT SOUTHERN PACIFIC TRANSPORTATION ) COMPANY; ATCHISON, TOPEKA, SANTA FE ) RAILROAD COMPANY; PACIFIC FRUIT ) EXPRESS COMPANY; T. ELLEN; E.E.CLARK; ) D. W. FEND; T. R. ASHTON; DOE DEFEN- ) DANTS ONE TO TWO THOUSAND; WHITE ) COMPANY; BLACK CORPORATION; BROTHER- ) HOOD OF RAILWAY AIRLINE AND STEAMSHIP ) CLERKS; R. B. BRACKBILL;J. M. BALOVICH;) SANTA FE SOUTHERN PACIFIC CORP ) REAL PARTIES IN INTEREST ) APPLICATION FOR WRIT OF CERTIORARI TO REVIEW MEMORANDUM OF DECISION OF UNITED STATES COURT OF APPEAL, NINTH CIRCUIT, FILED JUNE 1, 1992 ( RULE 10 (1) (a) (c)) LEE J. KUBBY, INC. A PROFESSIONAL CORPORATION BOX 60485 Sunnyvale, CA 94086-0485 (415) 691-9331 Attorney for Plaintiffs Appellants Applicants SIEU MEI TU and JOSEPH Z. TU TO THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES OF AMER- ICA: PLAINTIFFS-APPELLANTS-APPLICANTS SIEU MEI TU and JOSEPH Z. TU HEREWITH petition pursuant to Title 28, United States Code, section 1254(1); Rule 10 (1) (a) and (c) Rules of the Supreme Court of the United States4Hs FOR WRIT OF CERTIORARI TO REVIEW MEMORANDUM OF DECISION OF UNITED STATES COURT OF APPEAL, NINTH CIRCUIT, FILED JUNE 1, 1992 (a) QUESTIONS PRESENTED FOR REVIEW > 1. Does the Railway Labor Act prevent a Union Employee of a wholly owned subsidiary of a Rail- road, from bringing a civil action under state and federal anti discrimination statutes for tortious ~ workplace employment discrimination by reason of the workers origin of birth, sex, and or age. Does enforcement of a state law claim of racial, sexual, and or age discrimination constitute such interference with federal policy concerning rail- road collective bargaining agreements, so as to prohibit a person who has been discriminated against from seeking relief from any forum other than RLA arbitration procedure. Is discrimination —), Bers aD o- me ~ by an employer a minor dispute? 2. Has a gross miscarriage of justice occurred here against which the Supreme Court should act? 3. When an employer refuses to arbitrate with an individual employee concerning the employer's breach of the collective bargaining agreement, and the employer and the employee's labor union advise the employee that the union is arbitrating her grievances but the union fails to arbitrate that employees particular grievances, can the employee bring a civil action for the grievances under the principles of Vaca v. Sipes, 386 U.S. 171. (b) PARTIES TO PROCEEDING All the parties to the proceeding are listed in the caption of this pleading. (c) TABLE OF CONTENTS AND TABLE OF AUTHORITIES TABLE OF CONTENTS Questions presented for review 2 Parties to the proceeding 3 Table of Contents 3 Table of Authorities 5 Reference to official and unofficial reports of opinions delivered in the case by other courts or administrative agencies 10 -3- Grounds on which the jurisdiction of this court is sought to be invoked 11 Date of entry of the judgment or or decree sought to be invoked a2. The date of order respecting rehearing 11 The statutory provision believed to confer on this court jurisdiction to review the judgment or decree by writ of certiorari 11 The constitutional provisions, treaties, statutes, ordinances, and regulations involved in this case 16 Statement of the case 17 Basis claimed by defendants for federal jurisdiction to remand from California Superior Court to United States District Court Northern District of California 33 Argument amplifying the reasons relied on for allowance of the writ 33 Appendix 65 TABLE OF AUTHORITIES “CASES ALPHABETICAL Atchison, Topeka and Santa Fe Railway Vv , (1987) 107 Ss. Ct. 1410, 771 F2d 1320 (CA9th opinion). 44 Bremer v. St. Louis Southwestern R. Co. (DC Mo 1969) 310 F. Supp 1333 13 Bolker v. Commissioner of Internal Revenue, 760 F. 2d 1039, 1042 (9th Cir. 1987) astanedo v. Dura-Vent Corp. 648 F. 2d 612 (9th Cir. 1980) Castelli v. Douglas Aircraft Co., 752 F. 2d 1480, 1482 (9th Cir. 1985) Caterpillar Inc. v. Williams, 107 S.Ct. 2425 (1987) 59, 61 62, 63 Celotex Corp. v. Catrett, 106 S. Ct. 2548 (1986) Dayton Board of Education v. Brinkman (1977) 433 US 406. 55, 57 Del Cost o v. International Brotherhood o eamsters 462 U.S. 151, 103 S. Ct. at 2290 Dolphin Tours v. Pacific Creative Services, 773 F.2d 1506, (9th Cir.1985). Dutrisac v. Caterpillar Tractor Co., 749 F. 2a 1270, 1274 (9th Cir. 1983) 106 -5- Eichelberger v. NLRB. 765 F. 2d 851 (9th Cir.1985) Eisenberg v. Insurance Co. of N. Am. (CA 9th, 1987) 815 F2d 1285 Electronic Race Patrol, Inc. (D.C.N.Y. 1961) 191 F. Supp. 364. Evangelista v. Inlandboatmen's Union of Pacific, 777 F.2d 1390 (9th Cir.1985) Galindo v. Stoody Co., (CA 9th 1986) 793 F.2d 1502. Gallon v. Levin Metals Corp., 779 F.2d 1439, 1440 (9th Cir. 1986). Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2D 1103 (9TH Cir. 1987) Greagq v. Chauffeurs, Teamsters and Helpers Union Local 150, 699 F. 2d 1015, 1016 (9th Cir 1983) Gully v. First National Bank, 299 U.S. 109, 112-113, 57 S.Ct. 96, 97-98, 81 L.Ed. 70 (1936) Heatherton v. Playboy. Inc. (D.C. Cal 1973) 60 F.R.D. 372. Javanovich v. United States, 813 F. 2d 1035, 1037 (9th Gir. 2067) 42, 53 58 48,104 34,48 60 58 Johnson v. United States Postal Service, 756 F. 2d 1461 (9th Cir 1985). -6- Corp, 878 F2d 1193 (9th Cir. 1989) Vv. ernit n Ltd. of California, (CA9th 1949) 173 F2d 559 Lew_v. Kona Hospital, (CA9th, 1985) 754 F2d 1420 cAlester v. United Airlines, Inc. (10th Cir. 1988) 851 F.2d 1249 McLaughlin v. Liu (9th Cir 1988) 849 F.2d 1205. Miller v. Fairchild Indus., Inc., 797 F.2d 727 (9th Cir. 1986) New York Dock RY-Control-Brooklyn Eastern Dist, Fin. Dkt. 28250 at 401-403 (April 11, 1978) Pender v. National RR Passenger Corp. (DDC) 1985) 625 F. Supp. 252 Peterson v. Kennedy, 771 F.2d 1244, (9thCir. 1985), cert. denied 475 U.S. 1122 (1986). Perez v. Curcio, (CA9th 1988) 841 F.2d 255, Railway Labor Executives Assn v. Icc (9th Cir. 1991) 958 F2d 252 -7=- 53 53 12 37 34 13 48 35 Reimche v. First Nat. Bank of Nevada (CA 9 1975) 512 F2d 187. - Rio Grande Industries , et al --Control--SPT Co., et al, 41.C.C. 2d 834 (1988) (Rio Grande), aff'd sub nom. Kansas City Indus., Inc. v. United States, 902 F.2d 423 (5th Cir. 1990). Robesky v. Qantas Empire Airways Ltd., 573 F. 2d 1082 (9th Cir. 1978) Rollins v. Techsouth, Inc. (CA 11th 1987) 833 F.2d 1525 at 1528 37 Russo v. Prudential Ins. Co., 116 FRD 10, (E.D. Pa., 1986). Santa Fe Southern Pacific Corp. 5s --Control--SPT Co., 2 1.%.€- 45 USC 51 Ags OF 71,80 49 USC 11347 a, 2 15, 54,55 Rules of the Supreme Court of the United States tye Rule 10 (1) (a) and (c) 2,12,16 Federal Rules of Civil Procedure Rule 4 (3) 10, 16 Rule 6 (b) (2) 10, 16 California Government Code 12900 et seq. 10, 17 California Public Utility Code 216 10, 17 453 a8, a? TEXTS AND OTHER AUTHORITIES 6 Part 2 Moore's Federal Practice 56-304 (d) REFERENCE TO OFFICIAL AND UNOFFICIAL REPORTS OF OPINIONS DELIVERED IN THE CASE BY OTHER COURTS OR ADMINISTRATIVE AGENCIES There have been two administrative proceedings involving the respondents and the failed merger, — the initial determination by the ICC is reported in Santa Fe Southern Pacific Corp. recon den., 3 I.C.C. 2d 926 (1987) (SFSP) and Rio Grande Indus- tries , et al--Control--SPT Co., et al, 4 I.C.C. 2d 834 (1988) (Rio Grande), aff'd sub nom. Kansas City Indus., Inc. v. United States, 902 F2d 423 (5th Cir. 1990). See also Railway Labor Execu- -10- tives Assn v. ICC (9th Cir. 1991) 958 F2d 252 The second was an arbitration proceeding under the RLA for which there is no known report, but a copy of the decision in that matter is contained in the Appendix hereto. (€) GROUNDS ON WHICH THE JURISDICTION OF THIS COURT IS SOUGHT TO BE INVOKED (i) The date of entry of the judgment or decree sought to be reviewed: Ninth Circuit Court of Appeal Memorandum Deci- sion filed June 1, 1992 re the following orders of the United States District Court for the Northern District of California: Order denying motion to remand (October 13, 1987) Order granting Defendants' motion to dis- miss(April 8, 1988) Order re Defendant's motions to dismiss and for summary judgment (June 29, 1988 and June 30, 1988) Order granting Defendants' motion for summary judgment (Feb. 8, 1989) Order granting defendants' motion for summary judgment and to dismiss (August 14, 1989) | Judgment August 21, 1989 (ii) The date of order respecting rehearing: September 22, 1992 -ll- (iv) The statutory provision believed to confer on . this Court jurisdiction to review the judgment or decree by writ of certiorari: Jurisdiction of this court is sought to be invoked under The United States Constitution, Article III, Sections 1 & 2, Amendment VII, 28 U.S.C. 1254 (1), Rule 10 (1)(a) and (c), Rules of the Supreme Court of the United States in that there are special and important reasons therefore including the following: (i) The Ninth Circuit Court of Appeals in this matter has rendered a decision in conflict with the decision of another United States Court of Appeal, to wit the Tenth Circuit Court of Appeals in the case of McAlester v. United Air Lines, Inc. (10th Cir. 1988) 851 F2d 1249. The conflict substantially affects a rule of national application for which there is a need for national uniformity. McAlester supra, decided that the RLA does not repeal or preempt employment discrimina- tion claims sounding in tort based on -12- ——_ recognition of social right of equality of opportunity of persons regardless of race, while the 9th Circuit in the instant matter, declared that the plain- tiffs tortious termination-discrimination claims were subject to mandatory arbitra- tion under the RUA, (Memorandum page 22); were "minor disputes"; and plain- tiffs exclusive remedy is under the RLA. (Memorandum page 7). See also Pender v. a ssenge Orp.. (DDC, 1985) 625 F. Supp. 252 and Bremer v. St. Louis thwestern R Oo. (DC Mo 1969) 310 F. Supp 1333. (ii) The Ninth Circuit's memorandum of decision has decided a federal question in a way in conflict with deep rooted interests of the State of California, or sanctioned such a departure by the Dis- trict Court of the Northern District of California, as to call for an exercise of this court's power of supervision. California has a deep rooted interest in -13- having all its citizens free from discri- mination because of their race, age, and or sex. In this case, all three preju- Gices manifested themselves, and these interests of the State to have the work place free of discrimination, were ignored by the Ninth Circuit. (iii) A gross miscarriage of justice has occurred in this matter, in that the employer's attorneys in the civil action petitioned for remand to the federal court from the state court on the basis that Sieu Mei Tu's employer was a "carr- ier" with exclusive jurisdiction in the federal courts and argued successfully that Plaintiff's claim of conspiracy to subvert her civil rights to be free of discrimination by reason of sex, age, and or national origin and to deny her, her common law contract rights could only be enforced before the Interstate Commerce Commission, and then argue before the Interstate Commerce Commission that the -14= discriminatory reasons." In the instant matter Plaintiff has shown that she was 59 years of age when discharged (EX 526), that she was qualified to do the work (EX 733) that she was discharged (EX 608 & 733), the employer subsequently replaced plaintiff (EX 735-737). In the instant matter, plaintiff presented evidence that the employer represented to her that she was "fully protected" (EX 15). In reliance on that she continued to perform her employment -37- duties above average without complaint, suffered extreme treatment, stayed with the employer even though her commute was significantly increased when the offices were moved within the confines of the San Francisco General offices but to a less accessible location Brisbane. (EX 72, 74, 154-167, 309, 733). Plaintiff, being the party opposing motion for summary judgement with sworn declarations is entitled to her sworn statements taken as true for purposes of deciding the motion; the court can not resolve credibility issues with respect to direct evidence. McLaughlin v. Liu (9th Cir 1988) 849 F.2d 1205. That court quoted at 1208 with favor from T. W. Elec. Serv. v. Pacific Electric Con- tractors Assn. (9th Cir. 1987) 809 F.2d 626, 630-31 as follows: "... the judge does not weigh con- flicting evidence with respect to a disputed material fact....Nor does the judge make credibility determinations with respect to statements made in affidavits, answers to interrogatories, admis- sions, or depositions....These determinations are within the pro- vince of the fact-finder at trial. Therefore, at summary judgment, the judge must view the evidence; -38- in the light most favorable to the nonmoving party; if direct evid- ence produced by the moving party conflicts with direct evidence produced by the nonmoving party , the judge must assume the truth of the evidence set forth by the non- moving party with respect to that fact." The single page representation of the employer (Ex 937), the oral representations of her superiors that she was "fully protected" (EX 15), and the collective bargaining agreements (Ex 938) estab- lish the making of a statement on which it was intended plaintiff would rely, and the evidence presented by plaintiff demonstrates that she did so rely on the representations, so that the tri- able, material issue of estoppel was presented by plaintiff making the granting of summary judgment to the employer inappropriate. Clearly an issue of the employer being estopped from claiming the right to discriminate against her based on a decline in business is a triable issue of fact so that summary judgement should not have been granted. SUMMARY JUDGEMENT SHOULD NOT BE GRANTED WHERE A TRIABLE ISSUE OF FACT IS PRESENTED BY PLAINTIFF THAT THE EMPLOYERS RELIANCE ON DECLINE IN BUSI- NESS IS A PRETEXT TO COVER THE DISCRIMINATION EXERCISED AGAINST PLAINTIFF. WHERE AS HERE -39- PLAINTIFF PRODUCES EVIDENCE THAT THE EMPLOYER IS CONTRACTUALLY BOUND NOT TO DISCHARGE PLAINTIFF BECAUSE OF ECONOMIC DECLINE, THE EMPLOYER PURPO- SEFULLY CAUSED THE ECONOMIC DECLINE, WHEN THE BUSINESS WAS TRANSFERRED BACK TO THE HEADQUART- ERS BUILDING OF THE SP, IT PROSPERED, PLAINTIFF IS THE ONLY EMPLOYEE TREATED IN THIS FASHION, AND NEW, YOUNGER, NON CHINESE EMPLOYEES, WITH LESS EXPERIENCE THAN PLAINTIFF ARE HIRED TO PER- FORM THE DUTIES PREVIOUSLY PERFORMED BY PLAIN- TIFF. The issue presented here of an employer purpo- sefully causing an economic decline in aid of a pianned merger with another railroad, in order to circumvent a collective bargaining agreement and using that decline in business as a pretext for discriminating against an employee appears to be an issue of first impression. Under California contract law of offer and acceptance, it appears evident, that the collective bargaining agreements involved in the instant matter, to the extent they provide for the right of the employer to "fur- lough" employees during a formulated decline in business (EX 971) or where business is interrupted by emergencies (EX 962), were intended to concern themselves only with conditions beyond the employ- er's control, but the intent and purpose of the agreement can not be to allow the invocation of -40- those provisions when the employer causes the con- ditions for the very purpose of negating the con- tractual terms. The fact that the employees inorder to protect themselves when these conditions apply must stand ready to return to work on two weeks notice further demonstrates the intent and purpose of these provisions to deal with temporary conditions of the market not purposefully created by the employer. To allow such conduct would be to make a mock- ery of the collective bargaining process. SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED DEFENDANT EMPLOYER ON DISCRIMINATION CAUSE OF ACTION WHEN THERE IS A MATERIAL TRIABLE ISSUE OF FACT OF VIOLATION OF STATE STATUE PROHIBITING DISCRIMINATION AGAINST EMPLOYEES BASED ON THEIR EXERCISE OF RIGHT TO INSTITUTE PROCEEDINGS CLAIMING DISCRIMINATION In the instant matter, there is a triable issue of fact presented of discrimination ~post discharge of plaintiff because of her exercise of her right to institute proceedings concerning her discriminatory discharge. Post termination, she interviewed for a clerk's position at SP as a new hiree, was not hired, while numerous jobs of the -4l1- categories previously performed by Sieu Mei Tu with distinction have been created and filled with new younger workers (EX 733 & 736-738). All other employees at PFE, including the Union Local Chair- man, Mr. Balovich, have all been rehired at SP, given the opportunity of substantial severance pay benefits or continue employment, or allowed to retire with full retirement rights to age 65, or other golden parachute provisions. Sieu Mei Tu is the only terminated employee who has not received such benefits. She is the only terminated employee the employer was contractually obligated to give "full protection" , being the only employee on the roster at termination with a seniority date prior to March 16, 1963 (EX 736-738). Where the party opposing summary judgment pre- sents evidence that tends to support her claim, as here where plaintiff has presented retaliatory discrimination evidence, summary judgment should not have been granted. To have done so was a gross miscarriage of justice. In Eisenberg v. Insurance Co. of N. Am. (CA -42- 9th, 1987) 815 F2d 1285, Plaintiff brought an action against his former employer, an insurance company alleging retaliatory discharge and fraud. Defendant employer moved for summary judgment, claiming that the fraud claim was unfounded and that other claims were time-barred. In his response to the motion, Plaintiff asserted that he had been fired for refusing to violate California Law. The district court granted summary judgment for defendants on all claims, ruling that plain- tiff's response to the motion was conclusory and thus inadequate. The court of appeals reversed, holding that summary judgment was improperly granted. The court stated at 1290: "However, termination in retali- ation...would not constitute dis- charge for good cause....ICNA merely asserts that it had good cause to terminate the Appellant's employment--namely, considerations of economy. The Appellant, however, has adduced his declara- tion and the memoranda as direct evidence to contradict this asser- tion. Since the evidence must be taken as true, T. W. Electrical at 630-31, the Appellant's breach of contract claim is not vulnerable to summary disposition." -43- DEFENDANT RAILROADS WERE NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS TORT CLAIMS ON THE BASIS THAT THE TORT CLAIMS FRAMED IN THE FIRST AND SEC- OND AMENDED COMPLAINTS ARE MINOR DISPUTES, SO THAT THE SOLE REMEDY IS ARBITRATION UNDER THE COLLEC- TIVE BARGAINING AGREEMENT. PLAINTIFF WAS ENTITLED TO PROCEED ON HER CLAIMS AND WAS NOT LIMITED TO ARBITRATION UNDER THE COLLECTIVE BARGAINING AGREEMENT. FAILURE TO ALLOW PLAINTIFF TO DO SO WAS A GROSS MISCARRIAGE OF JUSTICE, AND IN CONFLICT WITH OTHER CIRCUITS. In the lower court the railroad defendants argued that Plaintiffs exclusive remedy on her tort claims for infliction of mental distress and discrimination was arbitration under the collec- tive bargaining agreement within the confines of administrative action under the RLA and the lower court so ruled (EX 306). Under the circumstances of this case, this was patently incorrect. In Atchison, Topeka and Santa Fe Railway Company v. im Buell, (1987) 107 S. Ct. 1410, 771 F2d 1320 (CA9th opinion) a railroad employee brought an action in tort for emotional distress arising from his employment conditions. The railroad filed an answer, asserting, among other defenses, that the employees sole remedy was before the NRAB. The District Court granted summary judgment to the railroad on this issue. The Ninth Circuit rev- -44- ersed, 771 F2d 1320. The Supreme Court on review stated at 1413: "Additionally, although the ques- tion had neither been raised by the parties, nor addressed by the District Court, the Court of ‘Appeals proclaimed that a relevant "issue, one of first impression in this circuit, is whether a Rail- road employee's wholly mental injury stemming from his railroad employment is compensable under the [(FELA)." Id, at 1321. The Court of Appeals concluded that the FELA does authorize recovery for emotional injury." The Supreme Court affirmed the Court of Appeals in its determination that the RLA does not preclude actions brought by railway employees against their employers for emotional injuries. Id, at 1418. In arriving at its decision, the Court stated at 1415: " The court has, on numerous occa- sions, declined to hold that indi- vidual employees are, because of the availability of arbitration, barred from bringing claims under federal statutes (citing author- ity). Although the analysis of the question under each statute is quite distinct, the theory running through these cases is that not- withstanding the strong policies encouraging arbitration, "differ- ent considerations apply where the employee's claim is based on -45- rights arising out of a statute designed to provide minimum sub- stantive guarantees to individual workers." (citing authority) The principle is instructive on the question before us. The FELA not only provides railroad workers with substantive protection against negligent conduct that is independent of the employer's obligations under its collective- bargaining agreement, but also affords injured workers a remedy suited to their needs, unlike the limited relief that seems to be available through the Adjustment Board. It is inconceivable that Congress intended that a worker who suffered a disabling injury would be denied recovery under the FELA simply because he might also be able to process a narrow labor grievance under the RLA to a successful conclusion. As then District Judge K. Skelly Wright concluded, " the Railway Labor Act...has no application to a Claim for damages to the employee resulting from the negligence of an employer railroad." Afortiori, the same must apply to a claim for damages resulting from the intentional acts of an employer railroad in discriminating against an employee in violation of her civil rights. SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED WHEN PLAINTIFF-OPPOSING PARTY HAS BEEN DENIED DISCOVERY BY DEFENDANTS AND NONMOVING PARTY REQUIRES ADDITIONAL TIME FOR DISCOVERY. Rule 56 (f) provides: -46- "Should it appear from the affida- vits of a party opposing the motion that the party cannot for reasons stated present by affida- vit facts essential to justify the party's opposition, the court may refuse the application for judg- ment or may order a continuance to permit affidavits to be obtained or depositions to be taken or dis- covery to be had or may make such other order as is just." In the instant matter, plaintiff demon- strated that defendants had prevented plaintiff from procuring discovery and advised the lower court of plaintiff's need to conduct discovery to meet the motions for summary judgment and dismis- sal (EX 694). It was a gross abuse of discretion, and a gross miscarriage of justice for the trial- court to proceed to judgment without plaintiff being given an order requiring the defendants to respond to the demands for discovery and for the Court of Appeal not to return the case to the trial court for further discovery. 6 Part 2 Moore's Federal Practice 56-304 SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED TO UNION DEFENDANTS. WHERE AS HERE THE UNION FAILED TO PERFORM PROCEDURAL OR MINISTERIAL ACTS WITHOUT ANY RATIONAL OR PROPER BASIS FOR THE UNION'S CONDUCT REFLECTING A RECKLESS DISREGARD FOR THE RIGHTS OF THE INDIVIDUAL EMPLOYEE SUM- MARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED -47- The standard for finding a breach of the duty of fair representation by a union is whether the union's conduct is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes 386 U>S> 171, 190, Peterson v. Kennedy, (CA 9th 1985) 771 F. 2a 1244, Cert. denied 0.8. , £06 8. Ce. i662 (1986). In the context of a grievance this stan- dard prohibits a union from ignoring a meritorious grievance or processing that grievance perfuncto- rily. Galindo v. Stoody Co., (CA 9th 1986) 793 F.2d 1502. In the instant matter the record demonstrates that the Union failed to perform the procedural act of advising the arbitrator of Sieu Mei Tu's claim of discrimination in her discharge, nor of her claim of discrimination in retaliation for her having exercised her right to claim discrimina- tion, nor her claim of exemption from the decline in business exception under the collective bar- gaining agreement. Since the Union failed to consult with her attorney, investigate the claim made by Sieu Mei Tu, or take any action to resolve her dispute with her employer concerning her -48- individual situation, they engaged in a reckless disregard for the rights of Sieu Mei Tu and the granting of summary judgement to the union denying Sieu Mei Tu to her precious rights to discovery and trial by jury was a gross miscar- riage of justice. The Union made no claim it made a judgmental decision not to present all Sieu Mei Tu's claims. It's failure to do so was a procedural and/or ministerial act, not involving an exercise of judgment, were there was no rational or proper basis for the union's conduct. The Union Defendant, undertook to represent the interests of the Plaintiff Sieu Mei Tu, a menm- ber of the union, in the administrative resolution of the matter of her claim for the Railroads wrongful and tortious breach of the collective bargaining contract of employment. In breach of its obligation of fair representation, the union failed to present any evidence to support plain- tiffs claims of discrimination in termination, discrimination in rehiring in retaliation for bringing discrimination claim, exemption from dec- -49- line in business provisions for furloughing under the collective bargaining agreement. In the leading case of Vaca v. Sipes, 386 U.S. 171 (1967), the Supreme Court held that the duty of fair representation could be enforced in a damage action by an employee against a union. That court granted to the union wide discretion in making the decision whether to take a grievance to arbitration, but provided that if the union does process the grievance it may not arbitrarily ignore a meritorious grievance or process in a perfunctory fashion. In Vaca supra at 191 the court stated: "... we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process RA in perfunctory fashion...." In Wise v. Southern Pacific Co. (1963) 223 CA2d 50; 35 C.R. 652, held that a railroad employee may bring and maintain a common-law or, where a state so provides, statutory action for damages for his wrongful discharge from employment in breach of a collective bargaining agreement, and is not barred from doing so by the Railway Labor Act. This view -50- was confirmed by the California Supreme Court in Wise v. Southern Pac. Co., 1 C3d 600; 83 CR 202; at 603. See also Shaw _v. Metro-Goldwyn-Mayer, Inc., (1974) 37 CA 3D 587, 597; 113 CR 617. In the instant action, Union decided to pro- cess administratively Plaintiff's claim for wrong- ful termination. However in processing that claim Union acted in an arbitrary, prejudicial, perfunc- tory manner in that Plaintiff's Union failed among other things to perform the procedural and mini- sterial duties of presenting evidence at the arbi- tration hearing held in regard to the claims of plaintiff, did not confer with the Plaintiff or her attorney concerning her claims, failed to make any claim of discrimination on behalf of Plain- tiff, failed to protect her from retaliation by reason of the claims she made personally, and pro- cedurally failed to advise the arbitrator the application of decline in business to Plaintiff's "furlough" was inappropriate despite the inapplic- ability of that provision to her by reason of her seniority. (EX 602) Union failed to act from a conflict of inter- -51- est, in that at the time it was suppose to be fairly representing Plaintiff it was acting in its own self interest seeking to purchase Defendant SP, and simultaneously seeking to become the bar- gaining unit for any combined railroad in the event the pending sale to Santa Fe or some other railroad was ultimately approved. (EX 189-193, 884) Rule 56 Rules of Civil Procedure does not per- mit entry of summary judgment, where there are, as here, genuine material issues of fact. In Traylor v. Black, Sivalls & Bryson, (CA 8th, 1951) 189 F2a 213, at 216, the court stated the rule as follows: ~ "A summary judgment upon motion therefor by a defendant in an action should never be entered except where the defendant is entitled to its allowance beyond all doubt. To warrant its entry the facts conceded by the plain- tiff, or demonstrated beyond rea- sonable question to exist, should show the right of the defendant to a judgment with such clarity as to leave no room for controversy, and they should show affirmatively that the plaintiff would not be entitled to recover under any dis- cernible circumstances....A sum- mary judgment is an extreme remedy, and under the rule, should be awarded only when the truth is quite clear....And all reasonable doubts touching the existence of a genuine issue as to a material -52- fact must be resolved against the party moving for summary judg- ment." See also Lane Bryant v. Maternity Lane, Ltd. of California, (CA9th 1949)173 F2d 559;Lew_v. Kona Hospital, (CA9th, 1985) 754 F2d 1420; Eisenberg v. Insurance Co. of North America (CA9th, 1987) 815 F2d 1285. THE RAILROAD DEFENDANTS SHOULD NOT HAVE BEEN DIS- MISSED FROM THE ACTION In reviewing orders of dismissal, the court of appeals must view the evidence most favorable to the plaintiff, and plaintiff was entitled to the benefit of all inferences that may be reasonably drawn from the evidence presented. Reimche v. First Nat. Bank of Nevada, (CA 9 1975) %12 F2d 187. The failure of the Ninth Circuit to grant Plaintiff the benefit of those inferences resul- ted in a gross miscarriage of justice. SUMMARY JUDGMENT WAS NOT GRANTED ON THE FIRST AMENDED COMPLAINT ON PLAINTIFF'S CAUSES OF ACTION FOR INTENTIONAL AND/OR NEGLIGENT INFLIC- TION OF EMOTIONAL DISTRESS, CONSPIRACY, BREACH OF CONTRACT OF EMPLOYMENT, BREACH OF GOOD FAITH AND FAIR DEALING CONSPIRACY NOR ON ANY CAUSES OF ACTION AGAINST RAILROAD DEFENDANTS, YET THE DISTRICT COURT DISMISSED WITH PREJUDICE THE ENTIRE SECOND AMENDED COMPLAINT WHICH HAD BEEN SERVED ON ALL RAILROAD DEFENDANTS AND UNION =-53 Ve C87-1198-DLJ 6 SOUTHERN PACIFIC TRANSPORTATION CO., et al., 8 Defendants. For the reasons stated in the order signed on this date, this court enters JUDGMENT in favor of defendants. IT IS SO ORDERED. DATED: February 6, 1989 14 D. Lowell Jensen 16 United States District Judge -142- FILED May 3, 1989 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 SIEU MEI TU and JOSEPH TU, C-87-1198 DLJ 5 Plaintiffs, ORDER 6 Vv 7 SOUTHERN PACIFIC TRANSPORTATION COMPANY, et al. 8 Defendants. 9 10 On April 12, 1989, this Court heard plain- tiffs' motion 11 for reconsideration of the order granting summary judgment to 12 defendants. Lee Kubby appeared for plain- tiffs. Wayne M. 13 Bolio appeared for defendant Southern Pacific. James Darby 14 and Kathleen King appeared for defendant Union. For the 15 following reasons, the Court DENIES plain- tiffs' motion for 16 reconsideration as to defendant Southern #14 3- Pacific, and GRANTS 17 plaintiffs' motion for reconsideration as to defendant Union. 18 19 RECONSIDERATION OF ORDER GRANTING SUMMARY JUDGMENT 20 FOR DEFENDANT SOUTHERN PACIFIC 21 In its earlier Order, the Court granted sum- mary judgment 22 to defendant Southern Pacific on grounds that while plaintiffs 23 had established a prima facie case of discri- mination, Southern 24 Pacific had rebutted this showing by evidence of a legitimate economic reason for the disris- sal, and that the plaintiffs had 26 not provided evidence which would meet their overall burden of 27 showing intentional discrimination. 28 In their motion for reconsideration, plain- tiffs' 2 principal argument is that Mrs. Tu had a con- tractual right -144- 3 to continued employment. On this basis, plain- tiffs' contend 4 that defendant's stated reason for Mrs. Tu's dismissal, 5 economic hardship, is false. However, this same argument was 6 raised in plaintiffs' opposition to summary judgment papers. 7 This argument was considered and rejected by the Court in 8 reaching its order granting summary judgment for defendant 9 Southern Pacific. 10 The Ninth Circuit set out the standard of review for a 11 motion for reconsideration of a summary judg- ment order in 12 Backlund v. Barnhart, 778 F.2d 1386 (9th Cir. 1985). The 13 court held that a motion for reconsidera- tion of a summary (14 judgment motion should be denied if it pre- sents no arguments 15 that have not already been raised in oppo- sition to summary 16 judgment. Id. at 1388. 17 Under the rule established in Backlund, this Court DENIES 18 plaintiffs' motion as to defendant Southern Pacific because 19 plaintiffs' motion fails to raise any new arguments, facts, 20 Or allegations, not previously raised in opposition to 21 summary judgment. 22 24 25 Although plaintiffs cite a number of rules from the Federal Rules of Civil Procedure in support of their motion, 26 a motion for reconsideration of summary judgment is appro- 27 priately brought under Rule 59(e). 1 RECONSIDERATION OF THE ORDER GRANTING SUMMARY JUDGMENT 2 FOR THE UNION DEFENDANT -146- 3 In its Order granting summary judgment to defendant 4 Union, the Court determined that the plaintiff had knowledge 5 of the Union's alleged lack of fair represen- tation in January 6 1986. Plaintiffs did not name the Union as a defendant until 7 April 1988. The Court found plaintiffs' claim time-barred by 8 the six month statute of limitations estab- lished by the 9 Supreme Court in Delcostello v. International Brotherhood of 10 Teamsters, 462 U.S. 151, 172 (1983) for fair representation actions. on grounds that the sta- tute of limitations had run 12 on plaintiffs' claim, the Court granted sum- mary judgment for 13 defendant Union. 14 On January 20, 1986, plaintiffs' counsel sent a letter | 15 to the Union requesting action on Mrs. Tu's -147- behalf. On 16 January 28, 1986, in response, the Union sent a letter to 17 Mrs. Tu, informing her that it would proceed with her claim 18 through the grievance process. On November 30, 1987, the 19 arbitration board denied the Union's claim on behalf of Mrs. 20 Tu. On January 4, 1988, the Union notified Mrs. Tu of the 21 arbitration.decision. Plaintiffs then filed an amended 22 complaint in April 1988, naming the Union as a defendant on 23 the fair representation clain. 24 The Ninth Circuit in Galindo v. Stoody Co., 793 F.2d 25 1502, 1510 (9th Cir. 1986), held that a fair representation 26 claim based on how a grievance is presented to an arbitrator 1 accrues when the employee learns of the arbi- trator's decision." -148- 2 The policy behind such a rule is the further- ance of nonjudicial 3 resolutions. 4 Based on Galindo, this Court GRANTS plain- tiffs' motion plaintiffs' motion for 5 reconsideration. Since the statute of limita- tions the statute of limitations did not begin 6 to run until Mrs. Tu was informed of the arbi- trator's decision 7. in January 1988, her amended complaint was timely filed in April 8 8. 1988. Accordingly, this Court vacates its earlier order 9 granting summary judgment to defendant Union. The Court's 10 ruling is without prejudice to a renewal by defendant Union of its motion for summary judg- ment. 11 Plaintiffs are directed to file an amended complaint by June 13 2, 1989. the status conference set for May 10, 1989, for is -149- 14 vacated. 15 IT IS SO ORDERED. 17 DATED: May 1989. 18 D. Lowell Jensen 20 United States District Judge ~130° 26 Tu claim that Sieu Mei Tu was terminated by PFE because of 27 =i52" 28 her age, sex, and race, in violation of the California Fair 2 Employment and Employment and Housing Act. Plaintiffs further allege that the union defendants breached their duty of fair 3 representation under the Railway Labor Act, 45 U.S.C. 151 4 et seq, by failing to adequately prosecute Sieu Mei Tu's 5 grievance against PFE. 7 II. STANDARD FOR SUMMARY JUDGMENT 8 Under Rule 56(c) of the Federal Rules of Civil 9 Procedure (FRCP), summary judgment may be granted when the 10 pleadings, depositions, answers to interroga- tories, and 11 admissions on file, together with the affida- vits, if any, 12 show that there is no genuine issues as to any material fact 13 and that the party is entitled to a judgment as a matter of 14 law." 15 In a motion for summary judgment, -i353=- "(ijf the party 16 moving for summary judgment meets its initial burden of ~ 17 identifying for the court those portions of the materials on 18 file that it believes demonstrates the absence of any 20 genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by 22 affidavit or as otherwise provided in Rule 56, “specific 23 facts showing-that there is a genuine issue for triai.® T.W. Electrical Service, Inc. v. Pacific Electrical 24 Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing 25 Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986); 1. Kaiser Cement Corp v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-4 (9th Cir.), cert denied, 107 S. Ct. 435 (1986)) ~1356¢ 2 (emphasis in original). Summary judgment may issue after 3 adequate time for discovery and upon motion, against a party 4 who fails to make a showing sufficient. to establish the 5 existence of an element essential to that party's case, and 6 on which that party will bear the burden of proof at trial. 7 Celotex Corp., 106 S. Ct at 2553-54. The stan- dard for 8 judging either a defendant's or plaintiff's motion for 9 summary judgment is the same standard used to judge a motion | 10 for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or 12 whether it is so one-sided that one party must prevail as a 13 matter of law." Anderson v. Liberty Lobby, Inc., 106 S. Ct. 14 2505, 2512 (1986). -i55> 15 Under this standard, the Court finds that no genuine 16 issue of material fact remains with respect to plaintiffs' 17 claim for breach of duty of fair representa- tion. Summary 18 judgment is therefore appropriate. 20 III. BREACH OF DUTY OF DUTY OF FAIR REPRES- ENTATION 21 Defendants move for summary judgment on plaintiffs' 22 claim for breach of duty of fair representa- tion. A union 23 violates its duty of fair representation only if its conduct 24 toward a member of the collective bargaining unit is 25 arbitrary, discriminatory or in bad faith." Vaca v. Sipes, 1. 386 U.S. 171, 190 (1967); Salinas v. Milne Truck Lines Inc., 846 F.2d 568, 569 (Sth Cir. 1988). A court must -156- 3 initially determine whether the act in ques- tion involved the union's judgment or whether it was procedural or 4 ministerial.1 Moore v. Bechtel Power Corp., 840 F.2d 634, 5 6 636, (9th Cir. 1988). If a union's judgment is in question, 7 the plaintiff may prevail only if the union's conduct was "discriminatory or in bad faith."ID 8 Defendants argue that they are entitled to summary 9 judgment because they acted in good faith and without a 10 discriminatory motive in representing Sieu Mei Tu. 11 Defendants advance five arguments to support their claim 12 that their conduct was neither discriminatory or in bad 13 faith. 14 First, defendants point out that, in antici- pation of 15 the closing of the Brisbane office, they filed a claim under -157- 16 the collective bargaining agreement with PFE on behalf of 17 Sieu Mei and others similarly situated. In the claim, 18 defendants stated that PFE was wrongfully transferring work 19 to other companies and locations without pro- viding employees 20 with "TOPS" protection.1 21 Second, defendants note that after Sieu Mei Tu and 22 seven others were laid off, they filed another grievance, 24 insisting that the employees be permitted to follow their 25 1"TOPS" protection provides job guarantees and monetary benefits for employees adversely affected by abolishments 26 and/or transfers 1. work to San Francisco or be provided with "TOPS" protection. The union eventually appealed both grievances. appealed both grievances. 2 Third, defendants note that in response ~- -i 55" SKE OO to the 3 inquiries by plaintiffs' counsel, defendants informed him by 4 letter that the union was pursuing a claim under the 5 collective bargaining claim under the collec- tive bargaining agreement on Sieu Mei fTu's behalf. 6 Fourth, defendants point out that they held meetings 7 with the Brisbane clerks during this period, which Sieu Mei 8 Tu attended, to inform the members of the actions the union 9 was taking against PFE. 10 Fifth, defendants contend that they took the grievance 11 to arbitration and were ultimately unsucces- sful. However, 12 defendants maintain that they convinced the arbitrator that 13 the laid off employees, including Sieu Mei Tu, should be 14 given priority consideration for new jobs with SP. 15 Defendants note that they provided Sieu Mei Tu's name and 16 address to SP for reemployment consideration, any she was 17 interviewed for a new position as a result of their efforts. 18 This Court finds defendants' argument persua- Sive. 19 Defendants' adherence to established proce- dures for handling 20 grievances suggest that its conduct was neither 21 discriminatory or in bad faith, and therefore or in bad faith, and therefore not a breach 22 of duty of fair representation. See Johnson v. United 23 States Postal Service, 756 F.2d 1461, 1466 (9th Cir. 1985). 24 Opposing defendants' motion, plaintiffs allege in their 25 papers and at orai argument that defendants ~260= breached their 1.duty of fair representation by acting in an arbitrary, prejudicial, and per- functory manner by failing: (1) to 2 present any evidence at the arbitration hear- ing; (2) to 3 confer with Sieu Mei Tu or her attorney con- cerning her 4 claims; (3) to make a discrimination claim on her behalf; 5 and (4) to protect her from retaliation. As support, 6 plaintiffs only refer only refer to the trans- cripts of the arbitration 7 hearing, the Interstate Commerce Commission's hearing, and 8 this Court's hearing on the Railroad defen- dants' motion for 9 summary judgment. 10 This Court finds plaintiffs' argument unper- suasive. A ll party responding to a motion for summary judgment may not 12 rest on mere allegations of pleadings but, rather, must set 13 forth specific facts showing there is a genuine issue for 14 trial. Celotex, 106 S. Ct. at 2552. Id at 2552. It is the non-moving 15 party's burden to produce evidence that would Support a jury 16 verdict in his favor. Anderson, 106 S. Ct at 256. 17 In response to defendants' motion, plaintiffs refer 18 only to the transcripts noted above and the prior 19 declarations that plaintiffs filed in opposi- tion to the 20 Railroad defendants' prior motion for summary judgment. 21 Even assuming that there that there is evi- dentiary material properly 22 before the Court before the Court in the transcripts, there is no showing by 23 this material or by the declarations that the -162=- defendants' 24 conduct was either discriminatory or in bad faith. 25 Plaintiffs have therefore failed to present any evidence which raises a genuine issue of material fact. Since plaintiffs offer only the conclusory allegations that 2 disputed material exists, without offering the necessary 3 supporting evidence, plaintiffs have failed to raise a 4 triable issue of material fact with respect to their claim 5 for breach of duty of fair representation. 6 Accordingly, this Court GRANTS defendants’ motion for 7 summary judgment as to plaintiffs' claim for breach the duty 8 of fair representation against the’ union defendants. Since 9 union officers are immune from personal liability for acts 10 undertaken as union representatives, Peterson “163° — v. Kennedy, 11 771 F.2d 1244, 1256-57 (9th.Cir. 1985), summary judgment is 12 also appropriate in favor of R. B. Brackbill and J. M. 13 Balovich, named as individual defendants. 14 CONCLUSION 16 Therefore, this Court GRANTS defendants’ motion for 17 summary judgment as to plaintiffs' claim for breach of duty 18 of fair representation and DISMISSES WITH PREJUDICE 19 plaintiffs' second amended complaint. Defen- dants' motion to 20 strike is now MOOT. 21 IT IS SO ORDERED. 22 DATED: August 11, 1989 23 D. Lowell Jensen 24 United States District Judge -164- Filed Aug. 14, 1989 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SIEU MEI TU and JOSEPH TU, 4 C-87-1198-DIJ Plaintiffs, 5 JUDGMENT 6 SOUTHERN PACIFIC TRANSPORTATION 7 COMPANY, et al., 8 Defendants. 10 For the reasons set forth in this reasons set forth in this Court's order granting defendants' motion for summary judgment, issued on 12 August 11, 1989, judgment is hereby entered in favor of 13 defendants. 15 IT IS SO ORDERED. 16 Dated: August 11, 1989 18 D. Lowell Jensen United States District Jucge SERVICE DATE SERVICE DATE DEC 4, 1992 INTERSTATE COMMERCE COMMISSION DECISION Finance Docket No. 30400 (Sub-no. 21) SANTA FE SOUTHERN PACIFIC CORPORATION -- CONTROL SOUTHERN PACIFIC TRANSPORTATION COMPANY Decided: December 3, 1992 By decision served June 18, 1992, the Commission reopened this proceeding and established a pro- cedural schedule to give employees of the South- ern Pacific Transportation Company (SPT) an Opportunity to demonstrate that they were adversely affected as a direct consequence of actions taken or orders issued by the Santa taken or orders taken or orders issued by the Santa Fe Southern Pacific Corporation (SFSP) in contemplation of the proposed merger of The Atchison, Topeka Atchison, Topeka and Santa Fe Railway Company and SPT.1 Discovery matters were subsequently referred to the Office of Hearings, and the procedural schedule has been modified several times to accommodate times to accommo- -166- ee ee ee ee OP aT ek ee Te mE date then. Urging that they are injured parties, Sieu Mei Tu, a former employee of Tu, a former employee of Pacific Fruit Express (PFE), and her husband Joseph Tu (collectively, Tu) moved to compel the production of documents from SPT and SFSP. SPT and SFSP objected. Cn November 9, 1992, the Chief Administrative Law Judge (CALJ) issued an order granting production of certain of these documents, but only as they related to PFE. Only one of the ten production requests approved by the CAIJ was made applicable to SFSP since it had otherwise complied with the CALJ'S limited production requirements. On November 13, 1992, SPT appealed the CALJ'S decision. Tu replied. SPT'S appeal is taken. pursuant to 49 CFR 1011.7(b) (1). Under this section, the Chair- man acts on appeals. These appeals are not favored; they may be granted only in exceptional circumstances to correct clear error of judgment or to prevent manifest injustice. “ SPT argues that the CALJ'S order: (1) is contrary to precedent because it has been estab- -167- lished that Tu's former employer is not a carr- ier subject to this Commission's jurisdiction and as a consequence Tu is not a proper party; (2) is inconsistent with the Commission reopen- ing decision because it precluded employees from pursuing individual claims at this time; and (3) violates the doctrines of res judicata and col- lateral estoppel because Tu's claims have pre- viously been litigated. 1 The proposed merger was denied in Santa Fe Southern Pacific Corp.--control--SPT Co., 2 I.C.C.2D 709 (1986) reconsideration denied, 3 :.C.¢.20 926 (1987). Thereafter, in Railway Labor Executives' Assn, v. ICC, 924 F.2d 961 (9th Cir. 1991), the court determined that this Commission possessed discretionary conditioning authority under 49 U.S.C. 11344(c) to “impose conditions governing the transaction" with respect to labor protection for adversely affected employees. It remanded the case for the Commission to determine. whether to exercise that discretionary authority, and in response this proceeding was reopened. -160= ee ee ee SERVICE DATE;JUN 18 1992 Finance Docket No 30400 (sub.no. 21) SANTA FE SOUTHERN PACIFIC CORPORATION--CONTROL SOUTHERN PACIFIC TRANSPORTATION COMPANY Decided: June 12, 1992 BACKGROUND In Santa Fe Southern Pacific Corp. --Con- trol--SPT Co., 2 U.C.C. 2d 709 (1986),recon den 3 I.C.C. 2d 926 (1987) (SFSP), the Commission denied the proposed merger of The Atchison, Topeka and Santa Fe Railway Company (Santa Fe) and Southern Pacific Transportation Company (SPT). The Santa Fe Southern Pacific Corpora- tion (SFSP) had owned the stock of SPT since December 1983 under a commission -approved inde- pendent voting trust that had enabled the two railroads' holding companies to merge. After the proposed rail merger was denied, SFSP was required to divest its interest in either Santa Fe or SPT. SFSP chose to sell SPT's stock to Rio Grande Industries (Rio Grande), and that acquisition was approved by the Commission in Rio Grande Industries, et al--Control SPT Co. et =169= al, 4 .1I.C.C. 2d 834 (1988) (Rio Grande), aff'd sub.nom. Kansas City Indus. Inc. v. United States, 902 F. 2d 423 (5th Cir 1990). The vot- ing trust was dissolved on October 13, 1989, when the Rio Grande-SPT acquisition was consum- mated. During the Rio Grande proceeding, the Rail- way Labor Executive's Association (RLEA) and the International Brotherhood of Teamsters (IBT) argued that certain SPT employees had been adversely affected by employer actions taken in anticipation of the Santa Fe-SPT merger. In Rio Grande, the Commission concluded that it was not required to impose labor protective conditions under 49 U.S.C. 11347 for the benefit of employees adversely affected by the rejected ATST-SPT merger and that it was not appropriate to impose labor protection for those employees in the context of Rio Grande's acquisition of SPT. Because of its continuing jurisdiction over the SFSP voting trust, the commission instead noted that SFSP was in a different posi- tion than Rio Grande and that the Commission's -170- —————————————— NT labor protection power would extend to employees adversely affected by SFSP. After consideration of comments, in a deci- sion served February 9, 1989, the Commission determined that: 0 (1) the unilateral displace- ment of employees by Santa Fe or SPT management, even in anticipation of the disapproved merger, would be governed by the applicable collective bargaining agreements between these carriers and their employees; (2.) there would be no basis for imposing labor protection on SFSP for merger anticipatory actions it could be shown to have ordered Santa Fe to take because SFSP was law- fully in control of Santa Fe and any grievances by Santa Fe employees would be found in collec- tive bargaining agreements between Santa Fe and its employees; (3) no basis had been shown to impose conditions for the benefit of SPT employees pursuant to section 11347; and (4) if any merger anticipatory actions adverse to SPT employees were shown to have been ordered by SFSP, in violation of section 11343, the adversely affected individuals would have a -174° court remedy under 49 U.S.C.11705. Finance Docket No. 30400 Cont-no. 21) On judicial review, the United States Court of Appeals for Court for the Ninth Circuit largely affirmed the February 9 decision.1 It concluded that aggrieved SPT employees did not have available to then a cause of action in the courts under section 11705.2 Instead,it deter- mined that the Commission possessed discretion- ary conditioning authority under its 49 U.S.C. 11344 (c) "to impose conditions governing the transaction" respect to labor protection for adversely affected employees, and remanded the cans for the Commission to determine whether to exercise that discretionary authority. The Commission sought rehearirg on the por- tion of the court's decision remanding the pro- ceeding to the Commission to consider in its discretion whether labor protection should have been imposed upon the merger denial. We argued that section 11344 (c) clearly contemplates imposing conditions only when a transaction is approved. -172- On rehearing, the Ninth Circuit expressly agreed with our conclusion that the labor pro- tective conditions mandated by section 11347 for approved transactions are not appropriate here.3 Additionally, the court deleted the explicit references in its earlier decision to a discre- tionary Commission authority under section 11344(c) to impose labor protection when denying a transaction. Instead, the court determined that section 11344 (c) contains a general discretionary con- ditioning authority under which the Commission is to consider and condition a transaction with respect to anti-competitive (section 11344(b) (1) (E)] and other relevant factors including labor [section 11344(b)(1)(D)]. Coupling this general conditioning authority with the Commis- Sion's divestiture order (and possibly the Rio Grande approval decision), the court directed us to consider in our own discretion whether labor protection should be imposed as a condition of the divestiture. DISCUSSION AND CONCLUSIONS =“i7s" We do not view the court decision on rehear- ing, as basing our discretionary conditional authority on the merger denial. Indeed, we con- tinue to view divestiture as a legal requirement emanating from our merger disapproval. Accord- ingly, we view the court decision on remand as relating to our continuing jurisdiction over SFSP from the time the voting trust was in effect, through the time the merger was denied, until the time the divestiture was consummated. Several of the early Commission decisions reflected the intention to monitor SPT'a situa- tion continually as it was held in the voting trust pending consummation. 1 Railway Labor Executives' Assn. v. ICC 924 F.2d 941 (9th Cir. 1991) 2. The court cited its earlier decision in Kraus v. Santa Fe Southern Pacific Corp., 878 F2ad 7.2d 1193 (1989) (Kraus). There it had ruled that the commissions merger jurisdiction was exclusive and precluded aggrieved employees from filing claims directly with the district court under section 11705. It noted that in Kraus it had explicitly rejected our February 9 decision's reasoning on the section ; i 7 © & issue. 3. Railway Labor Executives' Ass'n v ICC 958 F2d 252 (9th Cir. 1992) (superceding previous opin- ion) -174- Finance Docket No. 30400 (Sub-No. 21) For example, the Commission approved the voting trust in the SFSP consolidation proceed- ing, 4 based in part on the stipulation that the voting trust could at any time be modified to ensure compliance with the law. Also, inter- ested parties affected by SPT's actions were to be free to petition the Commission where it might be shown that actions were taken against SPOT's interest and for the benefit of Santa Fe or its parent. The Commission stated at page 13 that "...we do not at the outset put any limit on the type of condition that might be imposed....We should not hesitate to impose _ con- ditions to rectify abuses that might develop in these or any other areas.9 Subsequently, on February 27, 1987, the Commission served a decision based on an inves- tigation of the operations of the voting trust up to that time. The investigation had dis- closed undesirable contacts among the parties in several areas. Between the voting trust as implemented and SFSP's undertakings, the Commis- -175- sion concluded that SPT had not been insulated from SFSP to the extent intended. The decision clarified the trustee's obligations, emphasized that SPT's independence was the responsibility of both the SFSP and SPT managements, and stated that the relationships among the parties would continue to be monitored. Then in the remanded February 9, 1989 deci- sion, the Commission stated that any control SFSP exercised over SPT during the voting trust period would be subject to its jurisdiction by virtue of the voting trust. Specifically, it noted at page 2 that "(t)he carriers agree...that we would have authority over viola- tions of the voting trust." In the Rio Grande decision, supra, at 955-56, the Commission again recognized its con- tinuing jurisdiction over the voting trust and matters related to it. It stated as follows: "In authorizing (SFSP) to control SPT through a voting trust, we subjected SFSP to our continu- ing jurisdiction with respect to any number of matters, including the possible imposition of -176- additional conditions that we might deem neces- sary.... (W)e believe it is within our power to provide that ATSF or SPT who can demonstrate that they were adversely affected as a direct consequence of actions taken, or orders issued, by SFSP in contemplation of the merger which we ultimatly denied, be afforded labor protection in Finance Docket No. 38400." Consistent with the court remand, we are reopening this proceeding to give SPT employees (as a class) an opportunity to demonstrate that they were adversely affected as a direct conse- quence of actions taken or orders issued by SFSP in contemplation of the proposed ATSF-SPT merger. We seek specific evidence from the par- ties with respect to those actions or order issued by SFSP which may have affected SPT oper- ations and work related assignments. We are not at this time seeking personal statements from individual employees who believe they were adversely affected by SPT actions. The parties May also comment on whether and how New York Dock Ry-Control-Brooklyn Eastern Dist. 360 IcCc -177- 60 (1979) (New York Dock, may be modified 4. Finance Docket No. 30400, Decision No. 2, Santa Fe Southern Pac. Corp. -Control-Southern Pac. Trans. Co: Mercer Atchison, T & SFR Co. and South- ern Pac Trans. Co (not printed, served December See beaker No. 30400 (sub No. 21) procedurally and substantively to provide relief to adversely affected employees. 3 : This action will not significantly affect either the quality of the human environment or energy conservation. It is ordered: 1. This proceeding is reopened. 2. Former employees of the Southern Pacific Transportation Company or their representatives shall file evidence and argument as described above by August 3, 1992, replies shall be filed by September 1, 1992, and rebuttal shall be filed by September 21, 1992. 3. This decision is effective on June 18, 1992. By the Commission, Chairman Philbin, Vice Chairman McDonald, Commissioners Simmons, Phil- lips, and Emmett (seal) Sidney L. Strickland, Jr. S e Cc r e t a r y -178- 3 In the February 9 decision, at page 3, the commission recognized that the conditions fashioned in New York Dock are ordinarily imposed in approved consolidation cases and the they: provide for preservation of seniority, nego- tiated implementing agreements and arbitration, and severance pay, [and] are clearly designed to cushion the adverse impacts on labor of consum- mated transactions. -179- In the Matter of the Arbitration Between PACIFIC FRUIT EXPRESS COMPANY and BROTHERHOOD OF RAILWAY, AIRLINE AND STEAM SHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES -OPINION AND AWARD -(Transfer of work;--- sepa- ration allowance) The hearing in the above matter, upon due notice, was held in Stamford, Connecticut on August 6, 1987, before I. M. Lieberman, serving as Chairman of the Board of Arbitration, in accordance with the agreement between Pacific Fruit Express and Brotherhood of Railway. Air- line and Steamship Clerks dated July 15, 1987. The parties waived the tripartite provisions of the Agreement in favor of a single arbitrator. : The case of Pacific Fruit Express, herein- after referred to us the Carrier., was presented by K. R. Peifer, Assistant Vice President labor Relations. The case for the Brotherhood of Railway, Airline and Steamship Clerks, Freight -130- Handlers, Express and Station Employees, herein after referred to as the Organization, was pres~ ented by R. D. Brackbill, General Chairman. At the hearing the parties were offered full opportunity to off evidence and argument. Both parties submitted documents with the sub- stance of evidence in the case together with oral argument to supplement that documentation: THE ISSUE From the entire record the issue may be posed as follows: "Did the Carrier violate the Agreement by fail- ing to grant Claimants the right to follow work from the Pacific Fruit Express Company to the Southern Pacific Transportation Company or, in lieu thereof, grant Claimants separation allo- wances as provided for in the January 7, 1980 Agreement?" DISCUSSION The Carrier herein during this period was a wholly owned subsidiary of the Southern Pacific Transportation Comp([any. On August 15, 1 985 following an article which appeared in the press -18i=- ie the Organization filed a claim on behalf of all the employees (42) on the Pacific Fruit Express Seniority District 1 Roster alleging that Carr- ier was wrongly transferring their work to other companies in violation of the Agreements and also was taking steps to lay off all the Clai- mants through misapplication of the Agreement's decline in business provisions. In the Claim the Organization insisted that the employees follow their position and/or work with their full rights and be compensated at their last assigned rate or protected rate, which ever is higher, until normal retirement age, or be given, if the employee so elects, a lump sum severance of 360 days pay at their last assigned or protected. rate, which ever is the higher. The Organization alleged that Carrier was taking steps to disconti- nue the Perishable Freight Division of its activi- ties, namely the Carrier herein, and was giving away the work of Claimants. Carrier insisted that the claim in question herein was premature and anticipatory. Further, Carrier alleged that its actions were in total ~i82- concord with the provisions of the applicable Agreements of 1971 and the Special Agreement of January 7, 1980. By letter dated September 9, 1985, Carrier gave notice under those Agreements (20 days notice required) of it intent to abol- ish a number of positions in its Brisbane Head- quarters and to transfer the clerical work of those positions to Southern Pacific Transporta- tion Company. Nine employees were offered the opportunity to transfer with their positions. The remaining positions were abolished. Nine positions were created at the Southern Pacific Transportation Comp[any in its San Francisco General office. All employees who were not offered the opportunity to follow their work when the Brisbane office was subsequently closed, were furloughed, thus triggering the claims herein. Carrier relies in part on the decline in busi- ness of this carrier. Specifically, Carrier notes that the business decline was caused by the competition of the trucking industry to the particular speciality of this Carrier. In that -i33= context it is noted that the 1971 Agreement bet- ween the parties provided for a formula to determine decline in business which set forth that a decline in business in excess of 5% of the average percentage of both gross operating revenue and net ton miles in any 30 day period, compared with the average of the same period for. the years 1960 and 1969 would permit a reduction in permanent positions and employees. It is noted that that formula was amended in the course of the January 7th 1980 agreement between the parties (specifically Pacific Fruit Express) which specified that the percentages would be compared to 1970 and 1979 and that the old for- mula would be no longer applicable. In accor- dance with the new formula, Carrier submitted information concerning its activities during 1985 as compared to the averages of 1978 and 1979. Those figures on a month by month basis indicated declines ranging from January of 1985 where there was a 32.5% decline to December of 1985, where there was an 85.18% decline. It is evident from an analysis of the figures that -184- there was a precipitous decline in Carrier's revenue and ton-miles during the year 1985. In fact the figures show that the least percentage of decline during the 12 month period occurred in June of 1985, when there was merely a 16.09% decline (minus the 5%) and the high occurred in November of 1985 when there was a 97.06% dec- line. Several problems exist in this claim. First, it is evident that there were certain specific functions and work which were transferred from Carrier to the Southern Pacific Transportation Company. Those were specified and spelled out in Carrier's notice to the Organization in accordance with the Agreement. Certain employees were permitted to transfer and follow their position. The organization alleges that certain other work was also transferred to the Southern Pacific Transportation Company upon the closing of the Brisbane office of Carrier. However, there is no evidence whatever to indicate precisely what amount of the work the Organization claims was ~165~ indeed transferred. The lack of evidence makes it impossible for the Arbitrator to determine that there was indeed sufficient work transferred with out the concomitant opportunity for employees to follow their work. There is no evidence, and this is particularly significant, of the establishment of any of any new positions beyond those indicated by Carrier after the closing of the Brisbane office. The Organization relies on Article IV Section (a) of the January 7, 1980 Agreement in support of its claims. Unfortunately, those pro- visions which deal with an employee following his work or being permitted a severance allowance rely on facts which are not evident in this matter. Carrier has submitted ample evidence that its business declined precipitously during the year 1985. In addition there is no evidence that any positions were established at the Southern Pacific Transportation Company to which the fur- loughed employees from Brisbane could aspire. Carrier supported this practical application of the Agreement by providing copy of former B.R.A.C. General Chairman T. J. Dielh's October -186- 5, 1982 letter interpreting the Agreement wherein he stated: "...parties to the September 16, 1971 Agreement Article IV Section 1 (4a) employee cannot follow his work...." Clearly, Paragraph 3 of Article IV Section 1A which prov ides a severance allowance is not applicable since that provision relies in principal part on the requirement of an employee to move his residence in order to follow his position or work. There was no requirement that an employee from Brisbane going to San Francisco, even if a position were available, would be required to (the distance was not that great). In summary, therefore, it is apparent that the Organization has not presented facts which would indicate that there was work indeed transferred from Carrier to its parent in San Francisco, which accrued to the incumbents who were laid off in Brisbane. In addition, Carrier has_sub- - mitted significant evidence with respect to its decline in business. It is also apparent that this entire matter may be characterized as the parent company taking back work from its own -187- subsidiary. Such actions have long been held to be proper and do not constitute "coordinations" or triggering mechanisms for various protective benefits (see S.B.A. 605, Awards 390, 414, 320, and others). There is, in fact, no Rule support for Claimant's position. However, it must be noted that it is extremely desirable that the employees who were laid off at Brisbane and fur- loughed should be given priority consideration for future openings at the Southern Pacific Transportation Company in the San Francisco Gen- eral office. The Arbitrator cannot mandate such action but can recommend it strongly. For the foregoing reasons, however, the Claims in this instance do not have merit and they must be denied. AWARD Carrier did not violate the Agreement by failing to grant employees the right to follow work from Carrier to the Southern Pacific Transportation Company or in lieu thereof grant employees a separation allowance. I.M. Lieberman, Arbitrator Stamford, Connecticut November 30, 1987 -1i68=- Docket . MUL 00, Distfict off, Yr. Number OR Mo. Usy wr. 2 ee 1 ;'3 1 Juaye @ M,Y. I JDUG'MY I Akb I Ducket 971 3- 871 1198 . 2, 03 1 201 A7 all 7,dol I 71 241 ID I ae. 1 871 11, CAUSE: 08 LABOR: Railway Labor Act: 45 USC 151, et seq PLAINTIFFS DEFENDANTS TU, SIEU MEI AND TU, JOSEPH Z. SOUTHERN PACIFIC TRANSPORTAT COMPANY, ATCHISON, TOPEKA, S, FE RAILROAD COMPANY, PACIFIC EXPRESS COMPANY, ALLEN, T.; D PR[{PARED E.E.; FEND, R. W.; ASHTON# 11' T',L,USING CA" DOE DEFENDANTS ONE TO TWO TH( WHITE COMPANY, BLACK CORPORA' FIRST AMENDED COMPLAINT i BRO- THERHOOD OF RAILWAY, AIRLINE AN STEAMSHIP CLERKS; R. B. BRACKBILL; BALOVICH; SANTA FE SOUTHERN PACIFI ATTORNEYS LEE J. KUBBY, INC. ROBERT S. BOGASON SOUTHERN PACIFIC TRANSPORATIO COMPANY One Market Plaza, Room 837 San Fran- -189 = cisco, CA 94105 (415) 541-1786 Palo Alto, Ch 94304 (415) 856-3505 AND Patrick W. Jordan Wayne M. Bolio Defendant's Attorneys Cont. McLaughlin ana Irvin Kathleen S. King ill Pi HENNING, WALSH & KING San Francisco, CA 94111-5109 100 Bush St., Suite 440 (415) 433-6330 Sdn Francisco, CA 94104 For; Pacific Fruit Express Co (415) 981-4400 and Sourthern Pacific a Transportation Co. James M. Darby Assistant Gen- eral Counsel John H. Ernster Transportation Communica- tion Int'l Union Joseph 0. Costello 3 Research Place One Santa Fe Plaza Rockville, MD 20850 5200 E. Sheila Street For: Brotherhood of Rail- way, Airline A Steamship Los Angeles, CA 90040 Clerks, R.B. Brackbill, J.M. Balovich -190- (213) 267-5605 For: The Atchison, Topeka and Santa Railway Co. 6 Santa Fe Sourhem Pac Corpo- ration STATISTICAL Al CHECK FILING FEES PAID PROCESSE HERE c..u. NUIOBE.R IF CASE WAS DAI L I se-i F,ilflg FILED IN orm,natioli .2-FOFIMA Chaoige PAUPLHIS UNITED STATES DISTRICT COURT DOCKET oC-i I i TU -v- SOUTHERN PACIFIC TRANSPORTA- TIONO et al DATE Nft. PROCEEDINGS C-87-1198 DLJ 1987 Mar 20 1 PETITION FOR REMOVAL from the Superior Court State of California, Cit and County of San Fran- ciscot Caus #864666; documenl# removed; summon; and complaint. No process -Bond for removal: Surety-american Casualty Company of Reading, PA; Bond-$250.00 2 ORDER: First status conforence set for 6-17-87/9 a.m. DL, 23 3 Def,:ndant Pacific Fruit Express Company's ANSWER TO COMPLAINT 4 Defendants' first request =i9i= for production of documents 5 -notice of tak- ing deposition: Edna Clark, 5-13-87/9:30 a-m. 6 -notice of taking deposition: Joseph Z. Tu, 5-12-87/9:30 a.m. 7 -notice of taking deposi- tion: Siou Mei Tu, 5-11-87/9:30 a.m. 8 Defen- dant Southern Pacific Transportation's ANSWER TO COMPLAINT 24 9 Plaintiffs' Objection to Jurisdiction; demand for jury; objection to suf.iciency of bond 27 10 Defendants' notice of taking de?osition: Dr. Roberl e. Toi,ifoiicde, 9;30 a.in.; Dr. Ronald C. Lee, 9:45 a.in.; I)r. Ronald Elson, 10 a.all.; All said depositions will be taken on 6-13-87 June 5 11 Defendant's Pacific Fcuit Express Coinpany Status Confecence Stalement, June 17, 1987 at 9:00 a.m. 12 - Declaration of Wayne M. Bolio in support of Docuitient #11 11 13 Plaintiff's Sta- tus conference stateiiient on June 17, 1987 at 9:00 a.ii i8 14 MINUTES: (c/r:none), status conturence held on 6-17-87; further stat 8-5-87/9 I)LJ jui 16 15 Defendantsf first bet of inter- “194° rogatories to plaintiff 20 16 Plaintiffs' motion to remand to supecioc court, 8/19/87 at 9:30 aill - iiketuoraiidum of poirits dnd authorities ii-i suppoct thereof 28 17 Defendants' memoran- dum in opposition to plaintiffs' motion to remand 8/19/87 at 9:30 am r court (cenotice), 9/10/87 a Aug 3 18 Plaintiffs' motion to rel- mand to superio 10 am 19 Clerk's notice re: plaintiff has filed a motion to remand, noticed f hearing on 9/30/a7 at 10 am; opposition due 9/16/87; ceply tO opposition due 9/23/87 21 20 Plaintiffs' motion to reinand to Supecior Couct; declacation in suppo thereof, 9/30/87 at 10 am SEE SHEET A DC IIIA SHEET A C-87-1198 DLJ (Rov. 1/7.) ;Axltglylt-6 CIVIL DOCKET CONTINUATION GHLET PL’ ANTIFF DEFEND “NT SOUTHERN PACIFIC DOCKET NO. TU TRANSPORTATION CO., et al PAGE - OF-. PA DATE NR, PROCEEDINGS 1987 Sep 3 21 Defendants' -,.93° supplementacy brief in opposition to motion for remal 9/30/87 at 10 am 23 22 Plaintiffs' response to opposition motion to remand, 9/30/87 @10 30 23 MINUTES: (c/r: Jim Yeomans), plaintiff's motion to remand DENIED status conference not held; order to be prepared by defendant; c. continued to 12/16/87 at 9 am for further status. Oct 6 RECEIVED: Proposed order denying motion to remand 9 24 ORDER: Plaintiffs' motion to remand is DENIED. Entered 10/13/87, copies to parties. Clerk. 13 25 Defendants' proof of service by mail re: #24 15 Suuunona immued. Clork. (2 originals issued) 30 26 Defendants' notice of change of address of counsel Dv-c 24 25 De-fendants The Atchi- son, Topeka and Santa Fe Railway Cmpany and Santa Fe Southem Pacific Corporation's ANSWER TO CD"IRR, de -=d for jury trial 26 . - de=d for prior pleadings and discovery 1988 Jan 20 27 Clerk's notice re: status conference has been scheduled for 3/4/88 at 9 am Feb 29 28 -194- Defendants' notice of motion and motion to dis- miss and/or for sumary judgmen 4/6/88 at 10 am 29 == memorandum of points and authorities in support of #28 30 - declaration of Kevin Block in support of #28 31 Clerk's notice re: defen- dants have filed a motion to dismiss, noticed for hed on 4/6/88 at 10 am; opposition due 3/23/88; reply due 3/30/88 Mar 4 32 HINUTES: (c/r none), status conference held; case continued to 4/6/88 at 10 a; for defen- dant's motion to dismiss. D 23 33 Plaintiffs' response in opposition to motion to dismiss, 4/6/88 at 10 am 29 34 Defendants' reply brief in support of motion to dismiss and/or for summary judgment, 4/6/88 at 10 am OVER SHEET A CONTINUED C-87-1198 DLJ C 111A lov. 1175) CIVIL DOCKET CONTINUATION SHEET "LAINTIFF DEFENDANT SOUTHERN PACIFIC TRANSPORATION DOCKET NO. TU CO., et al -.99" -OF,.- PAGES DATE NR. PROCEEDINGS 1988 Apr 6 35 HINUTES: (c/r William Johnston), defendant's motion to dismiss GRANTED; order to be prepared by court; 30 days leave to amend. DLJ 36 ORDER: Defendants' motion to dismiss is GRANTED; plaintiffs are GRANTED leave to amend the complaint to state a federal cause of action; amendment must be filed with 30 days. DLJ Entered 4/8/88, copies to parties. Clerk. 14 37 Defendants proof of service by mail of order on defendant's motion to dismiss 29 38 Plaintiffs' FIRST A14ENDED COMPLAINT ay 10 Summons on first amended complaint issued. Clerk. 19 39 Defendants Santa Fe Southern Pacific Corp A The Atchison, Topeka and Santa Fe Railway Co.'s notice of motion and motion for dismissal, 6/29/88 at 10 am 40 - memorandum of points and authorities in support of #39 41 - joinder in Southern Pacific Transporation Co.'s motion to dismiss 42 Defendants South- ern Pacific Transportation Co. & Pacific Fruit -196- Express' notice of motion and motion to dismiss and/or for summary judgment, 6/29/88 at 10 am 43 - memorandum of points and authorities in sup- port of #42 24 44 Clerk's notice re: defen- dant Southern Pacific has filed a motion to dis- miss or for sumary judgment, noticed for hearing on 6/29/88 at 10 ani; opposition due 6/15/88; reply due 6/22/88 Jun 15 45 Plaintiffs' response in opposition to motion to dismiss - declaration of Lee J. Kubby in support thereof 21 46 Plaintiffs' corrections to response in opposition to motion to dismiss 22 47 Defen- dants The Atchison, Topeka and Santa Fe Railway Company and Santa Fe Southern Pacific Corpora- tion's reply memorandum in support of motion to dismiss 48 Defendants Southern Pacific Trans- portation Co. and Pacific Fruit Express Co.'s reply brief in support of motion to dismiss and/or for summary judgment 29 49 HINUTES: (c/r Vivian Balboni), defendant S.p.'s motion to dismiss or for summary judgment; defendant Atch- ison, Topeka A Santa Fe's motion to dismiss and “i3i= for summary judgment; order to be prepared by court; 1Sst three claims are dismissed; 8th Claim dismissed; remaining claims under submis- sion. a DLJ 50 Plaintiffs' supplemental declaration of Lee J. Kubby re motion to dismiss opposition SEE SHEET SS#BSS' SHEET "B" C-87-1198 DLJ DC IIIA ilik'ol (Rov. 1/75) CIVIL DOCKET CONTINUATION SHEET PLAINTIFF DEOENDANT DOCKET NO. TU a SOUTHERN PACIFIC TRANSPORTATION CO. PAGE -OF- P DATE NR. PROCEEDINGS 1988 Jun 30 bi | ORDER: The first, second, third, fifth and seventh causes of action are DISM with prejudice; court will exercise its pendent jurisdiction over fourth and claims; defendant railroads are DISMISSED from eighth cause of action; defen Santa Fe and Railway are DISMISSED from all causes of action; status confere will be held on “i 395= 9/7/88 at 9 am. Entered 7/1/88, copies to par- ties. Clerk Aug 2 52 Defendents Brotherhood of Railway, Airline and Steamship Clerks, R.B. Brackb-and J.M. Balovich's MSWER TO FIRST AMENDED COMPLAINT Sept 7 53 MINURES: (c/r none) status conference held; case cori-~ tiiiuud to 12/14/88 at 10:00 a.m.; James Darby admitted pro hac vice; Plaintiff will not serve individual defendants based on oc)urt's previous order, and court agrees; Deferidant to file s=m judgment mc)tion by 11/16/88; issue order. 12 54 ORDER: Defendantle are to file and serve their motion for s=m judg=t 11/16/88. He"irwg and further status corlterence, t-o ix. htld on 12/14/88 at I a.m. 27 55 Pl"tiffs' notioe to take dqmition of J. M. Balovich and R. B. Brackbill 10/26/88 at 10:00 a.m. oct 17 56 ORW. ca" referred to Chief magistrate for purposes of disoovery On'y-24 57 ORDER: deposition of i.m. @ich to be cont-inued to 11/21/88 and deposit-R.B. Brackbill tO 11/22/88; Magistrate will request fran Judge Jensen addii -i199- tirm for plaintiff's response 21* 58 MAGISR= MINURES: (c/r n=) diwmery hearing in person and via phOm; minuto ordar to be entered - see #57. 59 STIP=ION AND ORDER. ts to file their motion for su -27 . last day for defendan j t continued fran 11/16/88 to 1/4/89; Mming coitinutd trem 12/14/b 2/1/89 at 10:00 a.m.,.and further status con- fere= to Lx-- h(-,ld at sam tim, Nov 7 60 Clerk's notioe to counsel that status conference and mc)tlons fran 2/1/89 to 2/2/89. Notioe of motion and notim for dinmlification or other appropriate saric' 23 61 Southern Pacific 'D co. and Pacific Fruit Effress Co.); hear-in, 12/28/88 at 10:00 a.m. 62 - mawranduu of points and authorities in support of #61 63 - declaration of Kovin Block 64 - Goclwation of Posey Hudnall R=IVED: order granting defendants' motim for di f ication OVER DC IIIA SHM B C-87-1198-dii (Rov. 1/75) CIVIL DOCKET CONTINUATION SHEET ~200- PLAINTIFF DEFENDANT TU, et al PACIFIC TRANSPORTATION CO. DOCKET NO. et al PAGE - OF_ PA, DATE NR. PROCEEDINGS 1989 Jan 3 65 Defendants Southern Pacific Transportation Co. and Pacific Fruit Express Co.1l. declaration of Kevin Bl " . 66 - Declaratim of Chere Bonche. 67 - proof of servioe of Stipulation and order conti- nuing hearing on motion for disqualification, docurnents #65 wd 66. 4 68 Union Defen- dants' motion for a judg=t or, in the alternative, wtion dismiss, Feb. 2, 1989 at 10:00 am. 69 - statement of material facts as to which there is no dispute. 70 - Memrwdm of points and authorities in support of #68. 71 - Declmation of R.B. Brackbill. 72 - Declara- tion of James M. Darby. FFM.I=-. Propo#w Order granting niotion for s judgment. 73 STIPULATION AND ORDER: Hearing on defendants' mtion for disqualification or other appropriate sanctions, previously set for Dec. 28, 1988 be “2034> oontinued to Jan. 25, 1989 at 10:00 a.m. 74 Clerk's notioe to Counsel Re: there is already a hearing date and status oonf, set for Feb. 2, 1989, the defendants' motion to disqualify coun- sel will also heard on Feb. 2, 1989 at 10:00 a.m. There will be no any hearing on Jan. 25, 5 75 Defendants Southern Pacific Transportation Co. and Pacific Fruit Express CO.'., notioe of motion affl motion for s judgment, Feb. 2, 1989 at 10:00 a.m. 76 - ?.Wwranliun of points and authorities in support of motion for s judc5a 77 - Declaration of Ricahrd Fend in support of #75. 78 - Declmation of Tom Ellen in support of #75. 79 - roof of mmioe of documents #75 thru 7%. if&CEIVED: Pr order granting defendants' motion for s judg- ment. 7 80 Clerk's notioe to Counsel Re: Union defendant's mc)tion for s judginent O,, Gismissal is set for Feb. 2, 1989 at 10:00 a.m.; opposition papers by Jan. 19 1989; reply pgxrs by Jan. 26, 1989. sm S= c OC IIIA S= Cc C-87-1198-DW (Rov. «s02= 1/75) CIVIL DOCKET CONTINUATION SHEET PLAINTIFF DEFENDANT sim Mi TU AM JW"H TU PACIFIC T= ION,- et DOCKET NO. al PAGE -OF-DATE NR. PROCKEDINGS 1989 Jan 9 81 Deferdants Southern Pacific Transporlation Co. and Pacific Fruit Express rkotice of mc)tion fckr disqualif- ication or other appropriate saricti Feb. 2; | 1989 at 10:00 a.m. 82 - Proof of servioe of sti- pulat-ion and order continuing hearing on motior eiiscinial-ifimt;lon; notice from Court Re: motion; Amended not:lce of mot:lor 12 83 clerk's notice that deft mdtion for s judgment will be hem on 2/ at 10mu. 19 64 Plwtiffal notioe of changs of address. 85 - objw" to and =" to strike portioris of declara- tions in Support C for sum" i ; 2/2/89 at 10:00 a.m. 86 - statewnt of disputed mate- rial facts in opposition to motion for swm ment. 87 - m=== of points ad authoritiw in opposition to motion for suam 88 - Declaration in opposi- tion to motion-for disqualification. 89 - Decla- -203- ration of Lee J. Un In opposition to mouons for su=m Judgii go - Declaratim in oppo"tim to motion for sunran judgment. Propowd order Re: motion for s 5 t WA motion to 26 91 unim Defendants I reply to plaintif f s I mamrwduu of oppwition to mom summm judgmt; Feb. 2; 1989 at 10:00 a.m. 92 lwation of xa S. LM in sup" of #91. 93 Defendants Southern Pacific Transportation Co. and Pacific Fruit Expre-ss reply brief in support of mdtion for lification or other appropria Feb. 2g 1989 at 10:00 a.m. 94 - reply brief in of mdtion for s judgmt. 95 - Declaration of Kevin B= in support of #94. 96 - Stffl mm-ni-,m I-1=aum of Kovin Block. Feb 2 97 c/r Now) Beld status oonference 2/2/89; Ddfendmt's motim f ion Denied; Defendant's motion for s judg = t under E Smthern Pacific,a motion for s judgmmt under s ic OVER SHM secto C 87-13.98 -204- DLJ Dr- IIIA (Nov. CIVIL DOCKET CONTINUATION SHEET PLAINTIFF DEFENDANT DOCKET NO. Sim MEI TU PACIFIC TRANSPORRATION PAGE _OF--PAGE, D°TL NR. PROCEED- INGS 1989 Defendants' motion for s jud"t are GRANTED, as to plain- tiff's Feb 6 98 ORDM cl" for discr""tion, loss of oonsortixxn and breach of fair represen- tation; Defendants' motion for Disqualifacation DENIM. DLJ : 2/9/89 clerk 99 JUDGMERR: Re.- order #98 in favor of defendants. DLJ ENT- ERED: 2/8/69 malled oopites to counsel clerk 16 100 union Brotherhood of Railway's brief in support of taxation costs. 101 servioe 102 Is bill of oosts.for Brotherhood of Ralilway. 103 Southern Pacific's bill of costs. 17 104 notice of rrotion and mc)tion new trial , vacate, reoonsider, amffl ir altar judg=t, relief fran j t. set 3/22/89 at 10:00 -205- a.m. 105 - Mem of points and authorities rei #104 Proposed orm # 104 20 106 notioe of Plwtiff's motion for reconsiclration sat 3/22/89 at 10:00 Mar 7 107 Iaetter to clerk frcem yathleen ying re stipulation continu- ing hearing date. 108 Defendants Union' decla- ration of Ka S. King. 109 STIPULATION AND ORM. modificationof briefing schedule, see order for wre in DL.J 22 110 Defendant's uriioni Opposition to plantiff's motions for new trial for vacate and reoonsideration. set4/12/89 at 10:00 a.m. 111 8/21/89 clerk 131 JUDGMERR: For the reasons set forth in rhis oourt's order granting defend motim for s Judgment, issued on 8/11/89 judgment is hereby entered favor of defenddnts. -208- Constitutional Provisions, Treaties, Statutes, Rules and Regulations United States Constitution Article III: Section 1: The judicial Power of the United States, shall be vested in one supreme Court.... Section 2: The judicial Power shall extend to all Cases in Law and Equity arising under this Con- stitution, the Laws of the United States..... Amendment Article VII In suits at common law, where the value in controversy shall exceed twenty dol- lars, the right of trial by jury shall be pres- erved.... 28 USC 1254 (1): "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: (1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree;" 28 USC 1291: "The courts of appeals ...shall have jurisdiction of appeals from all final decisions of the district courts of the United States...." 28 USC 1445 (a): "A civil action in any State court against a railroad...arising under sections 51-60 of Title 45, may -209- not be removed to any district court of the United States." 45 USC 51 provides: "Every common carrier by railroad while engaging in commerce between any of the several states ...shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce.... Rules of the Supreme Court of the United States Rule 10 (1): A review on writ of certiorari is not a matter of right, but of judcial discre- tion. A petition for a writ of certiorari will be granted only when there are special and important reasons therefor. The following, whicle neither controlling nor fully measuring the Court's discretion, indicate the character of reasons that will be considered: (a) When a United States court of appeals has rendered a decision in conflict with the decision of another United States court of appeals on the same matter, or has decided a federal question in a way in conflict with a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's power of supervision. (3B) a v«s (c) When a state court or a United States court of appeals has decided an important question of federal law which has not been, but should be settled by this Court. or has decided -Z2i0= Ne a federal question in a way that conflicts with applicable decisions of this court. Rules of Civil Procedure Rule 4 (3): "If a service of the summons and complaint is not made upon a defendant withing 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with- notice to such party or upon motion. This sub- division shall not apply to service in a foreign country pursuant to subdivision (i) of this rule. Rule 6 (b): "When by these rules or by a notice given thereunder or by order of the cvourt an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its aiscretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.... Rule 56 (f): "Should it appear from the affida- vits of a party opposing the motion that the party cannot for reasons stated present by affida- vit facts essential to justify the party's opposition, the court may refuse the application for judg- ment or may order a continuance to permit affidavits to be obtained -2ii- or depositions to be taken or dis- covery to be had or may make such other order as is just." California Public Utilities Code: Section 216: (a) “Public utility" includes every common carrier...where the service is performed for or the commodity delivered to the public or any portion thereof. Section 453: (a) No public Utility shall, as to rates, charges, service, faci- lities, or in any other respect, make or grant any preference Or advantage to any corporation Or person or subject any corpora- tion or person to any prejudice or disadvantage. California Government Code: Section 12940: "It shall be an unlawful employ- ment practice, unless based on a bona fide occupational qualifica- tion, or except where based upon applicable security regulations established by the United States of the State of California: (a) For an employer, because of the race, religious creed, color, national origin, ancestry, physi- cal handicap, medical condition, marital status, or sex of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, -212~ or to bar or to discharge such person from employment, or to discriminate against such person in compensation or in terms, con- ditions or privileges of employ- ment. Section 12941: (a) It is an unlawful empioyment practice of an employer to refuse to hire or employ, or to dis- charge, dismiss, reduce, suspend, or demote, any individual over the age of 40 on the ground of age, except in cases where the law compels or provides for such action. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1878%3A1. Public record. Not legal advice.