Petition for Writ of Certiorari — Ramirez v. Pacific Maritime Ass'n

Supreme Court, U.S,

~ FILED

J 94 166 JUL 21 19%

— OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

JOHN A. RAMIREZ,

Petitioner,

vs.

PACIFIC MARITIME ASSOCIATION;

INTERNATIONAL LONGSHOREMEN'S AND

WAREHOUSEMEN'S UNION;

INTERNATIONAL LONGSHOREMEN'S AND

WAREHOUSEMEN'S UNION, LOCAL 18;

INTERNATIONAL LONGSHOREMEN 'S: AND

WAREHOUSEMEN'S UNION, LOCAL 13,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOHN A. RAMIREZ

Petitioner in Pro Se

1000 Haverhill Street

West Sacramento, California 95691

(916) 371-9330

a |

1)

2)

QUESTIONS PRESENTED

Whether the National Labor Relations Board

Proceedings Providea

Petitioner/longshoreman with a full and

fair opportunity to litigate all issues

and claims.

Whether the United States Northern

California District Court should have

given the Administrative Law Judge's

findings as to the Respondents’ refusal to

transfer Petitioner from the Los Angeles

Port to the Sacramento Port and refusal to

dispatch him collateral estoppel effect to

bar Petitioner's claim for Retaliatory

discharge.

VI.

SUBJECT INDEX

I ee ee kg ea ee

OPINION CITED BELOW ......... 1

rte 8G 6 og ee Se a

ee

STATEMENT OF THE CASE ........ 2

A. THE NATIONAL LABOR RELATIONS BOARD

I gg a a 3

THE NLRB'S UNETHICAL AND ILLEGAL

SETTLEMENT AGREEMENT TO COVER-UP THE

PMA-ILWU OFFICIALS ' RACKETEERING

ACTIVITIES IN OUR WEST COAST PORTS 5

REASONS FOR GRANTING THE PETITION ce Be

A.

B.

Ds ooo 6 Gk ee 12

ERROR IN THE COURT BELOW .... 13

VEE. GCOMCIUBION . . . 2. scene a ee ee ee eS

ii

APPENDIX

DISTRICT

APPENDIX

DISTRICT

APPENDIX

OF COURT

A: OPINION OF UNITED STATES

COURT ..

B: JUDGMENT OF UNITED STATES

COURT ..

C: MEMORANDUM AND ORDER

OF APPEALS

iii

TABLE OF AUTHORITIES

Cases

Allen v. McCurry

449 U.S. 90, 95 (1980) ee ey ae 15

Blom v. Spark Plugs U.S.A., Inc.

3 Cal. App. 4th 382, 388-89;

4 Cal. Rptr. 2d 139 (Feb. 1992) . 16

Clark v. Bear Stearns S. Co., Inc.

966 F. 2d 1318, 1320-21 (9th Cir.

RUE 8k Oo Se ON ce oe Oe

Metropolitian Life Ins. Co. Vv.

Massachusetts

471 U.S. 724, 755 (1984) a ea

U.S. v. Utah Constr. Co.

384 U.S. 394, 399 (1965) .... 12

Federal Statutes

Oe ree I gk oa er en eee

om WameGs. 200 TA (368) . 2 2 es 4 we % 2

California Statutes

Labor Code Section 1102.5, subdivision (a)

and (b) e a - i. . + _ o . — e ° o _ o 16

Government Code Section 12940, subdivision

(f) — °o = ° * 7 ” . = _ 2 _ * * * = se 16

iv

I. INTRODUCTION

John A. Ramirez, Petitioner in Pro se,

prays that the Supreme Court of the United

States grant a Writ of Certiorari to review the

two judgments below. Related Petition filed on

June 16, 1994.

II. OPINION CITED BELOW.

The Memorandum and Order was issued and

entered on October 14, 1992. Appendix A.

The judgement was entered on October 19,

1992. Appendix B.

III. JURISDICTION

The Memorandum of the United States Court

of Appeals for the Ninth Circuit was entered on

January 21, 1994. The Court of Appeals then

denied Petitioner's timely request for rehearing

and rejected his Suggestion for an rehearing en

banc on April 22, 1994. Appendix Cc.

The jurisdiction of this Court is invoked

under 28 U.S.C. 1254 (1).

//

//

IV. STATUTES

The original Complaint filed on April 28,

1992, in this district court set forth a hybric

action for breach of contract and breach of duty

of fair representation against Respondents unde

Section 301 of the Labor Management kelations

Act, 29 U.S.C section 185; a general fodera:

question.

But in September, 1992, Petitione?

attempted to bring to the attention of this

district court that his complaint actually set

forth a stems of action for wrongful terminatior

in violation of public policy premised o!

California law. This district court failed t

consider this claim. CR. 24 page 5.

V. STATEMENT OF THE CASE.

Petitioner's deregistration/firing was no’

litigated in the NLRB.

Without providing the Petitioner with a1

opportunity to gather or present his documentar

evidence which showed that the NLRB proceeding:

had been tainted by fraud, misrepresentation,

and other misconduct, the district judge decided

that all the issues and claims had been fully

_ and fairly litigated in the NLRB and therefore

dismissed the complaint.

A. T PRO GS

NLRB Administrative Law Judge ses R.

Pollack's decision only dealt with two issues:

whether the Respondents unlawfully refused to

transfer Petitioner from Los Angeles’ to

Sacramento and later refused to dispatch him in

Sacramento. The ALJ's decision issued on

October 16, 1991. Petitioner wasn't fired until

November 9, 1991.

Excluded from this hearing was relevant

evidence regarding the Respondents' illegal and

criminal Sacramento Class B longshore

registration which unlawfully excluded

Petitioner, their schemes of doubling and

tripling back and of padding the payroll, and

their widespread practice of registering only

their relatives and friends.

The NLRB's illegal settlement agreemen!

with Respondents supposedly resolved _ thess¢

allegations by Petitioner. Petitioner's

reporting of the Respondents' widespread illega]

activities and the NLRB's' misconduct tc

Congressmen, Senators, the Newspapers, and other

government agencies was not subject matter

covered by the ALJ.

Furthermore, the ALJ did not consider the

fact that NLRB Region 20 attorney Jonathan J.

Seagle and Petitioner's attorney Kevin S.

Robinson failed to gather or present evidence or

Petitioner's behalf during this hearing. Ir

fact, they deliberately suppressed evidence

which would have directly contradicted the

Respondents' stated business reasons for denyinc

his transfer and for placing him on the

nondispatch list - "no work list."

B. The NLRB's unethical and illegal settlement

to cover up Respondents' Racketeering activities

in our West Coast Ports.

By late March, 1990, NLRB Region 20

officials had knowledge of the PMA-ILWU

_officials' illegal Class B registrations in the

Ports of Los Angeles (1987), Oakland (1988), San

Francisco (1989), and Sacramento (1989). In the

Sacramento Port registration, the PMA-ILWU's own

documents, which Region 20 had, revealed that

PMA-ILWU officials working in concert had

deliberately changed the 1989 Coastwise Rules of

Registration without notifying affected

employees in violation of the National Labor

Relations Act as part of their plan to register

their relatives and friends. Region 20

officials also knew that a padding of the

payroll scheme was involved in that Sacramento

Port registration. And that doubling and

tripling back by union members was systemic in

the longshore industry and was depriving the

public of it's right to employment

opportunities.

On June 5, 1990, Region 20 attorney John M.

Kelly subpoenaed payroll records and other

documents from the PMA-ILWU dating back 20

years. Payroll records would expose the corrupt

practices of padding the payroll and doubling -

tripling back. And the other documents would

have revealed how PMA-ILWU officials had applied

their stated rules on a case by case basis in a

discriminatory fashion and had changed rules

arbitrerily to fit their needs at a particular

time so that they could maintain absolute

control over all longshoremen. A system built

on nepotism and cronyism.

Region 20 gjattorney John Kelly -= and

investigator Denise Scaffidi wanted to expose

this pattern of corrupt activity and had already

asked for assistance from the FBI and IRS.

The PMA-ILWU never turned over. the

subpoenaed documents. And subsequently, John

Kelly was forced out of Region 20 and Denise

Li.

Scaffidi found a public investigator job in the

ILWU's Vice President's brother's legislative

district in the State of Washington.

Region 20 attorney John Kelly, before he

left, advised Petitioner to retain a private

attorney because things were bad and that

Petitioner's political activity against Region

20 had become very troublesome to Region 20

officials and the PMA-ILWU. Petitioner

subsequently hired attorney Kevin S. Robinson to

represent him.

On august 28, 1990, attorney Kevin Robinson

and Petitioner reviewed a handful of documents

from the PMA-ILWU in Region 20's San Francisco

office. Robinson took notes. Robinson

proceeded to discover relevant evidence

regarding transfers, visiting (working)

privileges, leaves of absences, work

opportunity, and how the PMA-ILWU officials

applied their stated rules on a case by case

basis in a discriminatory fashion. Robinson and

Region 20 attorney Jonathan Seagle already knew

that the Respondents had unlawfully excluded

Petitioner from the Sacramento Port's Class B

longshore registration. This evidence

contradicted the Respondents' Wright-line

defense in the Petitioner's NLRB hearing.

Robinson and Seagle suppressed this evidence.

On September 28, 1990, and after NLRB

Region 20 officials and the Administrative Law

Judge had been questioned by Congressman Vic

Fazio, Congressman Robert Matsui, U.S. Senator

Alan Cranston, the Newspapers, and other public

squiilian vemendinn the NLRB's failure to fully

investigate the Respondents, the Administrative

Law Judge stated that any formal settlement

agreement with the PMA-ILWU would now exclude -

"exempt" - Petitioner. Appeal case no. 93-

15941, Excerpts of Record CR.7 Exhibit B pages

54-58 and Exhibit C NLRB Transcript page 88.

On December 7, 1990, Petitioner wrote to

NLRB Chairman James M. Stephens regarding NLRB

Region 20's deliberate misconduct and proposed

settlement agreement.

Fo Sates a wack OU

i PE Sis

Then NLRB General Counsel Jerry M. Hunter

lied to Congressman Vic Fazio to cover-up Region

20's misconduct.

On January 15, 1991, NLRB Region 20

attorney Jonathan Seagle and PMA-ILWU attorneys

Craig E. Epperson and Robert Remar agreed to

adjust the Sacramento Port's existing 1988 rules

regarding the Port's identified casual longshore

list and to modify the existing 1989 Coastwise

Rules of Registration to exclude Petitioner from

the identified casual longshore list and from

the future Class B registration list in the Port

of Sacramento.

Petitioner qualified for the 1988

Sacramento Port's identified casual longshore

list because he had worked the required

longshore hours in the Port - 500 hours in the

previous two years. Petitioner also met the

other criteria of 450 longshore hours in the

previous two years and over 5000 total longshore

hours in the industry.

Petitioner, by 1988, had already worked

approximately 8000 longshore hours in the Port

of Sacramento and had already 10 "good years"

credited towards his fringe benefits. Appeal

case no. 93-15941 Excerpts of Record CR.7

Exhibit B page 2.

NLRB Region 20's only stated reason for

denying the Petitioner with an opportunity to be

on this identified casual longshore list was

that he was already registered. Region 20 also

knew that the PMA-ILWU had changed their master

Collective Bargaining Agreement in July, 1990,

to require any longshoremen to be on this

identified list before he or she could obtain

Class B registration in any port. And that the

main qualification would be total longshore

hours/work experience in the longshore industry.

Furthermore, NLRB Region 20 proceeded to

modify the existing 1989 Coastwise Rules of

Registration to exclude Petitioner from the

Class B longshore re-registration process under

this settlement agreement in the Port of

Sacramento. Under this settlement agreement,

-10-

the PMA-ILWU officials agreed to fire those

sixteen 1989 Sacramento Class B longshoremen and

re-register sixteen Class B longshoremen by

these 1989 Coastwise Rules of Registration.

The 1989 Coastwise Rules of Registration,

before Region 20's and the PMA-ILWU's 1991

modifications, gave the Petitioner preference

for that Sacramento re-registration because he

had applied in November, 1988, and because he

had seniority as a registered longshoreman. The

Coastwise Rules gave preference to any

registered longshoreman who had applied for

Class B registration in any port. All the

Petitioner had to do was drop his registration

status in the Port of Los Angeles and accept

Class B registration in the Port of Sacramento.

Appeal Case no. 93-15941, Excerpts of Record

CR.7, Exhibit B pages 10-13.

As NLRB Region 20 attorney Jonathan Seagle

stated for the record it was not the province of

the agency to change the existing (1989)

Coastwise Rules of Registration when the

-ll-

Coastwise Rules were in effect at that time.

Appeal case no. 93-15941 Excerpts of Record CR.7

Exhibit C NLRB

Transcript page 574.

NLRB Region 20 therefore deliberately made

these adjustments and modifications not for any

legitimate reason, but made them to deprive

Petitioner of his property/employment rights

including his fringe benefits under this

settlement agreement because of his protected

conduct against the NLRB.

Therefore, this agency's actions would

qualify as fraudulent. U.S. v. Utah Constr. Co.

384 U.S. 394, 399 (1965).

VI. Reasons For Granting Petition

A. Importance

From the prospective that this case

concerns some individual's hardship or that the

Court below errored is not by itself significant

in the context of the United States Supreme

Court. Thousands of these cases are brought

before the Court every year.

-12-

But this case is much more than an

individual's hardship. It represents a

breakdown of systems whose goal was to insure

that this type of illegal conduct did not occur

in the first place.

Petitioner would not have spoken out if the

Respondents had been operating in a fair and

honest manner. The Respondents' corrupt

practices have not only hurt past and present

casual longshoremen by denying them employment

and unlawfully retaining their fringe benefits

but hive Slee cost the tax payers and

consumers - who ultimately pay for this

corruption and greed - Millions of Dollars over

the past 20 years. Our West Coast ports are

public facilities.

What is further at stake here is the

Constitutional and Statutory rights of everyone.

And these rights act as a bulwark against this

type of tyranny and corruption.

The PMA-ILWU officials have created a

Climate of fear and intimidation for all

-13-

longshoremen because of their absolute control

over employment and Class B registration -

employment provides a longshoreman with $200.00

for an eight-hour shift and Class B registration

provides a longshoreman with a $60,000 or more

a year job plus a lucrative package of fringe

benefits - which therefore gives them tremendous

power. And this power of employment has

provided the means by which the Respondents have

controlled union membership and squashed dissent

over the past 20 years to maintain the status

quo of seewention and greed in the longshore

industry.

B. Error in Court Below

The district judge stated that Plaintiff's

claim of wrongful discharge was not litigated by

the Administrative Law Judge. The only issues

before the A.L.J. were the denial of

Petitioner's transfer and the refusal to

dispatch him in Sacramento. Appendix A page 14.

"To foreclosure relitigation of an issue

under collateral estopped: 1) the issue at

Sn ee

stake must be identical to the one alleged in

the prior litigation; 2) the issue must have

been actually litigated in the prior litigation;

and 3) the determination of the issue in the

prior litigation must have been a critical and

necessary part of the judgement in the earlier

action." Clark v. Bear Stearns & Co., sae. 966

F. 2d 1318, 1320-21 (9th 1992).

Petitioner's State-law claim for wrongful

termination in violation of public policy which

included the charge that the NLRB had infringed

upon his Constitutional rights was not a part of

the ALJ's decision.

Furthermore, "one general limitation the

Court has repeatedly recognized is that the

concept of collateral estopped cannot apply when

the party against whom the earlier decision is

asserted did not have a full and fair

opportunity to litigate that issue in the

earlier case." Allen v. McCurry 449 U.S. 90, 95

(1980).

This Court has also recognized that "State-

:

-15- |

Labor standards - such as CA Labor code 1102.5

(a) and (b) and Gov't code 12940 (f) - affect

union and nonunion employees equally, and

neither encourage nor discourage the CBA

processes that are the subject of the NLRA."

And are “"nonnegotiable rights outside the CBA

and created by the State to protect neatth,

limbs, and property of citizens." Metropolitian

Life Ins. Co. v. Massachusetts 471 U.S. 724, 755

(1984).

And therefore "there exists a common law

cause of action for discharge in retaliation for

seeking to rectify violations." Blom v. Spark

Plugs U.S.A., Inc. 3 Cal. App. 4th 382, 388-89;

4 Cal. Rptr. 2d 139 (Feb. 1992).

Therefore, for the above reasons, the

district judge should not have’ granted

collateral estoppel effect to the ALJ's findings

to bar Petitioner's claim.

-16-

VII. Conclusion

For the above reasons, the Court should

grant the Petition.

Thank you.

Dated: July 21, 1994 Respectfully submitted,

John A. Ramirez

1000 Haverhill Street

W. Sacramento, CA 95691

-17-

ile dset 28 Visine tal oka

Appendix A

FILED

OCT 14 6:38 AM ‘92

RICHARD W. WIEKING

CLERK

U.S. DISTRICT COURT

NO DIST OF CA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOHN A. RAMIREZ, No. C-92-1579 MHP

Plaintiff,

MEMO UM AND

ORDER

-vs.-

PACIFIC MARITIME

ASSOCIATION, et al.,

ENTERED IN CIVIL

Defendants. DOCKET OCT 14 1992

ee ee ee ee ee See See ee ee ee ee”

Plaintiff John A. Ramirez ("Ramirez")

commenced this action against defendants

International Longshoremen and Warehousemen's

Union ("union") and Pacific Maritime Association

("PMA") on April 28, 1992 alleging that

plaintiff was deregistered (i.e., discharged) as

a Class B longshoreman in retaliation for filing

contract grievances and National Labor Relations

Board ("NLRB") charges. Complaint, page 7.

-Al-

Ramirez alleged that defendants breached the

collective bargaining agreement ("agreement")

and violated sections 8(b)(1) (A) and 8(b) (2) of

the National Labor Relation Act ("NLRA"), as

amended by 28 U.S.C. § 158, in discharging him.

Ramirez also alleged that the union violated its

duty of fair representation in failing to defend

Ramirez in the unlawful disciplinary actions

taken by PMA. Ramirez also alleged that

defendants discriminated against him in denying

his application for transfer from Los

Angeles/Long Beach Port ("LA Port") to

Sacramento Port and in placing him on non-

dispatch lists (is@, no work lists).

Complaint, pages 8-30.

On September 4, 1992, defendants filed a

motion for application of collateral estoppel

and summary judgment. Ramirez opposed the

motion for summary judgment, asserting that he

was entitled to the pending discovery.

Having considered the submissions and

arguments of the parties, and for the following

-A2-

reasons, the court GRANTS defendant's motion for

application of collateral estoppel and summary

judgment on plaintiff's claims.

BACKGROUND

I. Bac acts

Plaintiff was employed by PMA as a ona

longshoreman in the Port of Sacramento from June

1975 through August 1987. Plaintiff was,

thereafter, registered as a Class B longshoreman

in the LA Port in August 1987 and was

continuously in defendant's employ in such

Classification until November’ 1991, when

plaintiff was discharged by PMA.

Defendant PMA is an organization composed

of employers in California, Oregon, and

Washington engaged in the business of the

transportation of goods and passengers between

Ports. Defendants International Longshoremen

and Warehousemen's Union, Local 13 and 18, are

labor organizations and collective bargaining

representatives of the bargaining unit

OO

consisting of PMA's employees at the LA Port.

Ramirez filed several charges against the

defendants with the NLRB in 1989.

Administrative Law Judge Pollack of the NLRB

("ALJ") held hearings on plaintiff's charges

between May 1990 and February 1991. Ramirez was

represented by John Kelly, the Region 20 staff

attorney. Plaintiff alleges that Kelly suddenly

resigned on July 9, 1990. On August 1, 1990,

plaintiff hired a private attorney, Kevin

Robinson. Plaintiff was represented by Robinson

until maseh 11, 1991 when Robinson discontinued

the representation because he had taken a job as

a public defender. Ramirez claims that Kevin

Robinson had assured him that he had filed a

post-hearing brief on Ramirez' behalf when in

fact he never submitted such a brief and that,

therefore, he was denied effective assistance of

counsel.

On October 16, 1991, the ALJ issued its

decision which dismissed plaintiff's charges of

employment discrimination. Thereafter, on

~A4-

November 9, 1991, defendants sent Ramirez

notification of his discharge along with

arbitrator John Pandora's October 30th decision.

The notice of discharge recited as the reason

for the discharge that plaintiff had been

unavailable for work at the LA Port. Complaint,

Ex. C. Plaintiff alleges that the true reason

for the discharge was that defendants were

hostile towards plaintiff because he had filed

grievance charges.

On January 10, 1992 both parties filed

separate appeals of the ALJ's decision. While

Ramirez' appeal before the NLRB was pending, he

filed this action. On July 28, 1992, the NLRB

affirmed the decision of the ALJ.

II. Administrative Decision

The issues addressed by the ALJ were: (A)

whether certain officials of the union made

unlawful threats to Ramirez, (B) whether the

union unlawfully refused to transfer Ramirez

from LA to Sacramento, and (C) whether the

refusal to dispatch him in Los Angeles and

-~A5-

—_— oe ee Se

Sacramento was unlawful. Second Declaration of

Robert Remar ("Remar Dec"), Ex. 2 at 3.

A. Unlawful Statements

At the administrative hearing, Ramirez

alleged that the union violated section

8(b)(1)(A) of the NLRB when Richard Lomali,

secretary-treasurer of local 13, told Ramirez

that he must apologize to union officials for

going to the NLRB. Id. at 14. The ALJ found

that the uncontradicted evidence showed that

Lomali had told Ramirez to write a letter of

apology ‘te the Coastwide Labor Relations

Committee. Id. The ALJ also found that this

conversation occurred when Ramirez was trying

to gain support for his transfer. Id. The ALJ

held that the reasonable inference drawn from

Lomali's remarks is that the filing of the

charges had adversely affected the possibility

of Ramirez' transfer. Id. at 14-15. The ALJ

stated "[a]ccordingly, I find that by these

statements Respondent Local 13 violated section

8(b)(1)(A)." Id. at 15 (citing Petersburg

-A6-

Associates, 239 N.L.R.B. 1091, 1097 (1978)).

The ALJ also found that Robert Olvera

violated the NLRA by telling employee Tyrone

Neal that Ramirez "blew it" by filing charges

against Olvera and that Olvera was going to help

Ramirez get a transfer until Ramirez filed

charges against him. Id. The ALJ hela that

"such statements tend to threaten employees that

the filing of unfair labor practices would

result in retaliatory action. Accordingly, . .

- Respondent International violated the Act by

Olvece*s atseneante.* Id. The ALJ issued a

cease and desist order. Id. at 19.

B. Request for Transfer

In order to prove a violation of NLRB

section 8(a) (1) or 8(a) (3), plaintiff must first

make a prima facie showing sufficient to support

the inference that protected conduct was a

"motivating factor" in an employer's action.

Ramar Dec., Ex. 2 at 15-16 (citing Wright Line,

ivision of Wri j a 254 BERD;

1083 (1980), enforced 662 F.2d 899 (1st Cir.

-A7<

ee OT ES ad

eee

1981), cert. denied, 455 U.S. 989 (1982)). Upon

such a showing, the burden shifts to the

employer to demonstrate that it would have taken

the same action even in the absence of the

protected conduct. Id. at 16.

The ALJ found that Ramirez had made a prima

facie showing that defendants denied his

transfer partly because he had filed grievance

charges. id. The ALJ found that’ the

defendants, however, had met their burden of

establishing that Ramirez would have been denied

a tronster for legitimate business

considerations even had he not filed grievance

charges. Id. at 17. The ALJ stated that even

if the union was partially motivated by unlawful

considerations, Ramirez would have been denied

a transfer because the defendants had lawful

business reasons for refusing to permit such a

transfer. Id. The ALJ agreed with the

defendants that Ramirez had not met the

requirements for a transfer under the agreement.

Id. Therefore, the ALJ found that the

-A8-

defendants did not violate the NLRA in refusing

to permit Ramirez to transfer to Sacramento.

id.

c. emova ° is ist

Ramirez had also alleged at the

administrative hearing that he was placed on the

non-dispatch list because he had filed grievance

charges. Id. at 18. Ramirez alleged that he

did not return to work at the LA Port because

Richard Lomali had told him that he was cleared

from the LA Port so as to allow him to work in

Sacramento. Id. The ALJ found that Richard

Lomali had told Ramirez that he was cleared from

the LA Port. Id. The ALJ, however, held that

Lomali had exceeded his authority and that

Ramirez' unavailability would have resulted in

his being placed on the non-dispatch list even

in the absence of the grievance charges. Id.

The ALJ, therefore, found that the defendants

did not violate the NLRA in applying the

nondiscriminatory work rules to Ramirez. Id.

2. Removal from Dispatch List in

Sacramento

The ALJ also found that local 18 did not

violate the NLRA in removing Ramirez from the

dispatch list in Sacramento. Id. The ALJ

concluded that local 18 did not violate the NLRA

because it was applying the non-discriminatory

work rules to Ramirez. Id. The ALJ stated that

Local 18 was bound by the agreement to enforce

the discipline imposed upon Ramirez by the Los

Angeles Port Labor Relations Committee. Id.

GAL S DS

ae u ent

Under Federal Rule of Civil Procedure 56,

summary judgment is proper "if the pleadings,

depositions, answers to interrogatories, and

admissions on file, together with’ the

affidavits, if any, show that there is no

genuine issue as to any material fact and that

the moving party is entitled to a judgment as a

“A10-

matter of law." Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). See also T.W. Elec. Serv.

Pacifi : ‘'n, 809 F.2d

626, 630 (9th Cir. 1987) (the nonmoving party

may not rely on the pleadings but must present

specific facts creating a genuine issue of

material fact); d on v. Libe bb S.,

477 U.S. 242, 248 (1986) (a dispute about a

material fact is genuine "if the evidence is

such that a reasonable jury could return a

verdict for the nonmoving party.").

ee function, however, is not to

make credibility determinations. Id. at 249.

The inferences to be drawn from the facts must

be viewed in a light most favorable to the party

opposing the motion. T.W. Elec. Serv., 809 F.2d

at 631.

It. Collateral Estoppel

Under the doctrine of collateral estoppel,

"an actual and necessary determination of an

issue by a court of competent jurisdiction is

conclusive in subsequent cases based on a

different cause of action but involving a party

to the wntee litigation." Johnson v. Mateer,

625 F.2d 240, 243 n.5 (9th Cir. 1980). Findings

on issues decided in NLRB proceedings are

entitled to collateral estoppel effect under

certain circumstances. Paramount Transport

Systems v. Chauffeurs, Teamsters and Helpers,

Local 150, 436 F.2d 1064, 1066 (9th Cir. 1971);

Rainbow Tours, Inc. v. Hawaii Joint Council of

Teamsters, 704 F.2d 1443, 1445-46 (9th Cir.

1983). An administrative decision is given

ocliisteral estoppel effect if the findings on

material issues were supported by substantial

evidence on the administrative record as a whole

and if the proceedings fully complied with the

standards of procedural and substantive due

process. Paramount Transport, 436 F.2d at 1066.

DISCUSSION

Defendants seek summary judgment on the

grounds that the doctrine of collateral estoppel

bars plaintiff's claims. Plaintiff opposes the

-Al2-

motion on the grounds that he was unable to

perform discovery at the administrative hearing

and has not been able to complete discovery in

this action. For the reasons stated below, the

court finds that defendants are entitled to

application of collateral estoppel and summary

judgment on Ramirez' claims. .

I. Collateral Estoppel and Summary Judgment

Defendants seek summary judgment’' on

plaintiff's claims on the grounds’ that

considering the NLRB conclusions, if given

collateral estoppel effect, plaintiff cannot

prove his claims. To give collateral estoppel

effect, defendants must show that: (A) the

findings were made on material issues, (B) the

findings were supported by substantial evidence

on the administrative record as a whole, and (C)

the proceeding fully complied with due process.

Rainbow Tours, 704 F.2d at 1446.

A. Findings on Material Issues

In order for the findings of an

administrative board to have collateral estoppel

-A1l3—-

AT STERN AL, TNE IS OPTS > ERED RT RL LS TTD we

)

|

|

effect, the issues involved must be material

issues necessary to the determinations of the

Board. Paramount Transport, 436 F.2d at 1065-

66. Plaintiff's allegations of wrongful refusal

to transfer and placement on the non-dispatch

list were material issues litigated by the ALJ

and are therefore barred by collateral estoppel.

Remar Dec., Ex. 2 at 3.

Plaintiff's claims of discharge without

just cause were not explicitly litigated by the

ALJ. However, the underlying issues alleged by

the plaintiff and the defendants were

adjudicated. Plaintiff's only basis for the

unlawful deregisteration claims is that the

defendants had acted in a retaliatory manner.

Defendants contend that Ramirez was discharged

because of his unavailability at the LA Port.

Both the issues of whether defendants' actions

were retaliatory and whether plaintiff had been

unavailable at the LA Port had been adjudicated

by the ALJ. The ALJ had found that defendants’

adverse actions towards Ramirez were not

~A14-

discriminatory or retaliatory but were a result

of his unavailability. Accordingly, the court

finds that plaintiff's claims present issues

which were material issues necessarily litigated

by the ALJ.

B. Findings Supported by Substantial

Evidence

Defendants allege that the findings of the

ALJ are supported by substantial evidence on the

record as a whole. Paramount Transport, 436

F.2d at 1065. The court agrees. The agreement

provided the basis for the grant of transfer

requests and Ramirez had not met the

requirements. Accordingly, the court rules that

the ALJ's findings of lawful denial of transfer

is supported by substantial evidence.

This court also finds that the ALJ's

conclusion that Ramirez was placed on the non-

dispatch list for legitimate business reasons is

Supported by the administrative record. The

agreement provided that employees who are

unavailable for 70% of the scheduled time are

~A15-

subject to non-dispatch and deregisteration.

The record supports the ALJ's conclusion that

Ramirez was unavailable at the LA Port after

February 1991. Accordingly, the court finds

that the ALJ's conclusions were supported by

substantial evidence on the record.

Cc. Due Process of Law

Defendants allege that the administrative

hearing complied with due process requirements

because Ramirez had a full opportunity to appear

and was represented by counsel. Plaintiff

opposes the application of collateral estoppel

on the grounds that he did not have a full and

fair opportunity to gather and present all the

relevant facts at the NLRB proceedings, and

consequently, the Board's decision was

incomplete, one-sided, and improper.

Plaintiff specifically contests the

protective order issued by the ALJ prohibiting

discovery without the consent of defendant's

attorney or the approval of the ALJ. Plaintiff

states that as a result he was able to inspect

“A1L6—

ie es FO ee Oe ee ee ee eee ee ee ay eee

only a handful of documents which were

predetermined by the defendant's attorney to be

relevant. Plaintiff, however, does not state

which documents he was unable to inspect and how

those documents were relevant. Additionally,

because plaintiff had the opportunity to appeal

to the ALJ as to any particular document he

sought and chose not to do so,, this court finds

that the limitations placed upon discovery by

the ALJ did not deny Ramirez due process.

Plaintiff's complaint alleges that he was

not represented by counsel during a portion of

the administrative proceedings. However,

plaintiff has not provided any further evidence

raising a genuine issue of material fact that he

was denied due process.

Accordingly, this court finds that

collateral estoppel bars plaintiff's claims.

Because this court grants collateral estoppel,

there are no genuine issues of material facts

and therefore summary judgment on these claims

is proper. Fed. R. Civ. P. 56.

~Ai7=

II. Motion to Compel Discovery

Ramirez also moves this court to compel

discovery. Ramirez had made a document request

under Federal Rule of Civil Procedure 34 on June

11, 1992. Because this court grants defendants'

motion for collateral estoppel and summary

judgment, plaintiff's motion to compel discovery

must also be denied. G Vv i of

San Francisco, 818 F.2d 1515, 1519 (9th Cir.

1987).

//

~A18-

CONCLUSION

Accordingly, the court GRANTS defendants'

motion for application of collateral estoppel

and summary judgment on plaintiff's claims. The

court also DENIES plaintiff's motion to compel

discovery.

IT IS SO ORDERED.

Dated: October 14, 1992

MARILYN HALL PATEL

United States District Judge

-A19-

Appendix B

Neen ne enn ey cambio, tobi

FILED

OCT 19, 1992

RICHARD W. WIEKING

CLERK, U.S. DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JOHN A. RAMIREZ,

NO. C-92-1579 MHP

JUDGEMENT

Fed. R. Civ. P. 58

Plaintiff,

-vs.-

PACIFIC MARITIME

ASSOCIATION,

et al.,

Defendants.

ee ee ee ee ee ee ee See See ee ee

This action having come before this court,

the Honorable Marilyn Hail Patel, United States

District Judge presiding, and the issues having

been duly presented and an order having been

duly filed,

IT IS ORDERED AND ADJUDGED that defendant's

motion for application of collateral estoppel

and summary judgement is GRANTED, and the action

is DISMISSED in its entirety.

-Bl-

IT IS SO ORDERED.

Dated: October 19, 1992

MARILYN HALL PATEL

United States District Judge

-B2-

Appendix C

Shei

acer <

Ne Bb

FILED

JAN 21 1994

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN A RAMIREZ, )

) No. 92-16848

Plaintiff-Appellant )

) D.C. No. CV-92-01579-MHP

Vv. )

)

PACIFIC MARITIME ) MEMORANDUM*

ASSOCIATION )

et al., )

)

Defendants~-Appellees. )

Appeal from the United States

District Court for the Northern

District of California Marilyn H.

Patel, District Judge, Presiding

Submitted January 18, 1994**

Before: REINHARDT, O'SCANNLAIN and KLEINFELD,

Circuit Judges.

John A. Ramirez appeals pro se form the

district court's grant of summary judgement in

favor of Pacific Maritime Association and the

International Longshoremen's and Warehousemen's

-Cl-

Union Locals 13 and 18 in his action brought

under section 301 of the Labor Management

Relations Act, 29 U.S.C. 185, for breach of a

collective bargaining agreement and breach of

the duty of fair representation. The district

court found that a prior adverse decision by the

National Labor Relations Board collaterally

* This disposition is not appropriate for

publication and may not be cited to or by the

courts of this circuit except as provided by 9th

Cir. R. 36-3.

*% The panel unanimously finds this case

suitable for decision without oral argument.

Fed. R. App. p. 34 (a): 9th Cir. R. 34-4.

Accordingly, Ramirez' request for oral argument

is denied.

-C2-

estopped Ramirez from relitigating the

retaliatory discharge issues underlying his

claims and granted summary judgment on that

basis. We have jurisdiction under 28 U.S.C.

1291 and affirm for the reason stated in the

district court order.

AFFIRMED

-C3—

if

FILED

APR 22 1994

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN A. RAMIREZ )

No. 92-16848

Plaintiff-Appellant, )

D.C. No.) CV-92-01579-MHP

Northern California

(San Francisco)

Ve

ASSOCIATION

)

PACIFIC MARITIME )

)

et al., )

)

Defendants-Appellees. )

)

Before: REINHARDT, O'SCANNLAIN and KLEINFELD,

Circuit Judges.

The panel has voted to deny appellant's

petition for rehearing and to reject the

suggestion for rehearing en banc.

The full court has been advised of the

suggestion for rehearing en banc and no active

judge has requested a vote on whether to rehear

the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is denied and

the suggestion for rehearing en banc is

-C4-

rejected.