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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 513 U.S. 874

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0155%3A1. Public record. Not legal advice.