Reply Brief — Andrews v. Alaska Operating Engineers-Employers Training Trust Fund

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NO 94 - 185

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Gagrems Court, |

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

¢

RONALD B. ANDREWS,

Petitioner,

Vv.

ALASKA OPERATING ENGINEERS-

EMPLOYERS TRAINING TRUST FUND,

Respondent.

*

On Petition For Writ Of Certiorari

To The Alaska Supreme Court

¢

PETITIONER'S REPLY BRIEF

4

RICHARD H. FRIEDMAN

JOHN BERNITZ

FRIEDMAN, RUBIN & WHITE

1227 W. 9th Avenue

Suite 201

Anchorage, AK 99501

(907) 258-0704

“Counsel of Record

“BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF CONTENTS .. + «© «eee &

TABLE OF AUTHORITIES ..... . iii

INTRODUCTION . . «© «© «© © «© © «© «© « 1

SUPPLEMENTAL STATEMENT OF THE CASE 3

po, i ee ee ee a ee ee

Be The Court Should Grant

Certiorari Because

Expanding ERISA Preemption

To State Law Claims Which

Do Not Require

Interpretation Of ERISA Or

ERISA Governed Trusts

Would Limit State Created

Employee Rights For All

Employees Of An ERISA

Governed Trust... . 5

II. Andrews' Case Does Not

Require An Interpretation

Of ERISA Or The ERISA

Governed Plan..... 8

A. Andrews' Suit Will Not

Require An Interpretation

Of ERISA . .«. «© «© ee « 8

B. Andrews' Suit Does Not

Depend On The Existence Of

An ERISA Regulated Trust

° s * * . 7 . * >. 7 aa gy

C. Andrews' Suit Will Not

Require Interpretation Of

ERISA's Provision

Prohibiting Misuse Of

Trust Funds ......- 10

D. Andrews Will Not Need

To Interpret The Terms Of

The Trust Agreement. 11

E. Alaska Law Provides

Public Policy Against A

Retaliatory Discharge . 12

F. ERISA Preemption Pro-

visions Was Intended To

Preempt Suits Requiring

Interpretation Of ERISA:

Andrews' Suit Is Not

Preempted ....... 13

III. The Existence Of An

Alternative ERISA Remedy

Does Not Preempt Alaska

LAW. «© « «© «© «© «© « «© « 24

IV. The Alaska Supreme Court's

Decision Conflicts With

Decisions In Other

Jurisdictions ..... 15

CUORGLAOLOM « @ @ &@ 6h ehUehlUmethlUlme Ul! ee

APPENDIX A: Excerpts From Andrews'

Complaint

APPENDIX B: Excerpts From

Depositions Of The

Trustees

ii

TABLE OF AUTHORITIES

CASES

s_v oats & c., 865 F.2d

1237 (11th Cir. 1989) ...cccccccccces 16

s Se,., 71

Wash. App. 511, 859 P.2d 1251 (Wash.

App. 1993).......6. errr rrTerrrrrerere 16

Eldridge v. Felec Services, Inc.

F.2d 1434 (9th Cir. 1990)........ a3. 3

v. Harbor House Restaurant,

861 F.2d 1389 (9th Cir. 1988)..... 8, 16

e Ss 2 V-

Castonguary,

984 F.2d 1581 (9th Cir. 1993)...... 6, 16

Halifax Packing Co. v. Coyne, Inc.,

462 0.8. 3, 107 &S. Ct. 2211, 96 L. EG.

Se re eee 13, 14

Ingersoll-Rand Co. v. McClendon, 498

U.8. i133,

111 S. Ct. 478, 112 L. Ed. 474

ee owes BE a hn wee ee O08 8% 7

Lane v. Goren, 743 F.2d 1337 (9th Cir.

CCE RCh dee 640040: CO re 16

Lingle v. Norge Division of Magic

Chef, Inc., 486 U.S. 399, 108 S. Ct.

1877, 100 L. Ed. 2d 410 (1988)....... 11

tke v. Nabors S illin Cae

768 P.2d 1123, (Alaska 1986)......... 12

v. Signa e ° , 417

Mass. 154 N.E.2d 20 (Mass. 1994).... 16

iii

Vv

782 P.2d 1155 (Alaska 1989)......... 13

Sorosky v. Burroughs Corp., 826 F.2d

a. ree 16

STATUTES

SO U.B.C.R. BB BDRORAEEs 60 onc cee ees 2

29 U.S.C. §§ 1104, 1106(b),

ai eer jndbnkedeenseneeweee »

em we ee ee 9, 15

Pub. L. No. 93-406, 88 Stat. 1-514,

SOGR GOs 0 bh doe ok oxiesesin ete 2

Dal. 36. GR bac bionsdnsuteeee 8, 10

Ash. S90 CI 060000 0kk us jee 10

re eo Se er eee ee 8, 10

LAW REVIEWS

Gregory, The Scope of ERISA Preemption

Of State Law A Study In Effective

Federalism, 48 U. Pitt. L. Rev. 427

PRs co 0545 ced eee est 7

iv

NO 94 - 185

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1994

’

RONALD B. ANDREWS,

Petitioner,

Vv.

ALASKA OPERATING ENGINEERS-

EMPLOYERS TRAINING TRUST FUND,

Respondent.

4

On Petition For Writ Of Certiorari To The

Alaska Supreme Court

+

PETITIONER'S REPLY BRIEF

&

INTRODUCTION

Petitioner, Ronald Andrews, seeks

review by this Court to redress. an

erroneous decision by the Alaska Supreme

Court that dismissed his state lawsuit

for wrongful discharge. Respondent

opposes this petition essentially on the

merits of the case. Respondent misstates

the nature of Andrews' case concluding

that it requires an interpretation of the

Employment Retirement Income Security Act

of 1974 ("ERISA") Pub. L. No. 93-406, 88

Stat. 1-514, 3001-4082 (codified as

amended at 29 U.S.C.A. §§ 1001-1461 (1985

& 1994 Supp.)). Respondent argues that

bece’ se Andrews ' suit involves an

interpretation of ERISA, it is preempted

by ERISA.

Respondent's argument establishes a

straw man argument: if Andrews' case

requires an interpretation of ERISA, then

respondent would be correct. Andrews,

however, is not bringing an ERISA clain.

His suit requires interpretation of

neither ERISA nor an ERISA governed

trust. That ERISA may provide

alternative relief for Andrews does not

mean that Andrews brought his suit under

ERISA and should not invoke the

preemption provision.

Because respondent misstates

Andrews ' argument it overlooks the

existence of grossly divergent lower

court opinions, the frustration of the

lower courts, and the affect preemption

will have on thousands of employees of

ERISA governed plans. This petition

should be granted to clarify the law on

whether ERISA preempts state lawsuits,

which do not require interpretation of

ERISA, and to preserve the existing

state laws that protect employees.

SUPPLEMENTAL STATEMENT OF THE CASE

Respondent makes several factual

assertions which compel a response.

Andrews reported Williams, his

supervisor, to the Trust's attorney

because he suspected Williams of

improperly seeking reimbursement for

travel expenses. Appendix A to Petition

at 4. In his complaint, Andrews alleges

that Williams either received duplicate

reimbursement for the same expense or was

reimbursed for expenses not related to

the Trust's business or both. Appendix A

hereto at @ 5. Andrews also reported

that Williams received cash from his

airline tickets by converting them to a

lower class of travel and pocketing the

difference in fares.

Respondent alleges, as a defense,

that Andrews was fired because he wrote a

check that exceeded his authority under a

Trust Agreement. The Trustees, however,

told Andrews that he could write the

check in question. Appendix B hereto at

3-4. Significantly, the Trustees, except

for Williams, have not testified that

this was the reason they terminated

Andrews. Appendix B hereto at 1-3, 5-6,

7. The actual reason the Trustees

terminated Andrews is a factual question

best left to the jury.

ARGUMENT

I. The Court Should Grant Certiorari

Because Expanding ERISA Preemption

To ‘State Law Claims Which Do Not

Require Interpretation Of ERISA Or

ERISA Governed Trusts Would Limit

State Created Employee Rights For

All Employees Of An ERISA Governed

Plan.

Respondent agrees that courts have

not yet resolved this issue.? Yet

respondent argues that the decision by

the Alaska Supreme Court will not have a

Significant impact. The Alaska Supreme

Court held that ERISA preempts a state

law cause of action, which does not

require interpretation of ERISA, simply

4 "There have been no reported cases since the

enactment of ERISA, nearly twenty years ago,

involving this unique combination of facts and

relationship.” Respondent's Brief In Opposition

to the Petition For Writ of Certiorari at 6

("Opposition").

because there is an alternative cause of

action under ERISA. Petition, Appendix

A.

The impact of such a holding cannot

be overstated. It will preempt a

multitude of state law remedies which

will either leave injured employees with

no redress for their injuries or require

that federal courts develop an extensive

body of federal common law. General

American Life Ins. Co. v. Castonguary,

984 F.2d 1518, 1522 (Sth Cir. 1993)

("federal courts would have to invent a

federal common law of contracts, torts,

property, corporations -- something that

would run against the grain of our

federal system.").

If ERISA preempted all

state law relating to employee

benefits plans, a dangerous

vacuum would result.

Progressive state legislation

would be frustrated and

Congress might not fill the

void with the necessary federal

legislation. Major problem

areas in employment law could

be left unaddressed. The

healthy pluralism envisioned by

Justice Brandeis would be

vitiated. This would be

counterproductive to ERISA's

objective of furthering, rather

than debilitating, progressive

employment law.

Gregory, The Scope Of ERISA Preemption Of

State Law A Study In Effective

Federalism, 48 U. Pitt. L. Rev. 427 at

457 (1987). The holding of the Alaska

Supreme Court combined with the absence

of a clear decision by this Court

threatens a vast number of state laws.”

‘ Respondent incorrectly states that Ingersoll-

Rand Co. v. McClendon, 498 U.S. 133, 111 S. Ct.

478, 112 L. Ed. 474 (1990) addressed the “pivotal

issue” in this case. Opposition at 7.

Ingersoll-Rand held that a state lawsuit, which

depended upon the existence of an ERISA governed

plan, was preempted. Andrews' suit does not

depend upon the existence of an ERISA governed

plan.

II. Andrews' Case Does Not Require An

Interpretation Of ERISA Or The ERISA

Governed Plan.

A. Andrews' Suit Will Not Require

An Interpretation Of ERISA

Provisions Regulating

Fiduciaries.

Respondent states that certain ERISA

provisions determine "the circumstances

under which an ERISA trustee may be

properly reimbursed." Opposition at 4.

Defendant is correct that there are

certain provisions of ERISA which

regulate reimbursement of fiduciaries.

29 U.S.C. §§ 1104, 1106(b) and 1108(c).

There are also, however, state laws

governing fiduciary responsibilities of

trustees. A.S. 13.36.070; A.S.

11.46.620. Andrews' suit is based upon

these state laws.

The fact that ERISA may provide

additional regulation of fiduciary

relationships does not mean that ERISA

preempts Andrews' suit. See Etheridge v.

Harbor House Restaurant, 861 F.2d 1389,

1404 (9th Cir. 1988). ERISA preempts

state laws “insofar as they may now or

hereafter relate to any employee benefit

plan([.)]" 29 U.S.C. § 1144(a). State

laws regulating fiduciaries are entirely

independent from ERISA. They apply to

all fiduciary relationships. Andrews'

suit is based on these state laws. It is

not based upon ERISA's’ regulation of

fiduciaries. Therefore, Andrews' suit

will not require an interpretation of

ERISA and, in accordance with the purpose

behind ERISA's preemption provision, is

not preempted.

B. ndrews' it oes Not epend

On The Existence Of An ERISA

egu ed ust.

Andrews' claims are based upon the

existence of a trust, but are not based

upon the existence of an ERISA trust.

Alaska law regulates fiduciaries to all

trusts. See A.S. 13.06.050(45). It,

thereby, covers both trusts governed by

ERISA and trusts which are entirely

unrelated to ERISA. Id. Andrews is

seeking to enforce Alaska law regulating

trusts, not ERISA. While his claim is

premised upon the existence of trust, it

is not based upon whether ERISA governs

the trust.

e. Andrews' Suit Will Not Require

Interpretation Of ERISA's

Provision Prohibiting Misuse Of

Trust Funds.

The alleged misuse of trust funds is

a question of Alaska law and does not

depend upon ERISA. Alaska law governing

trusts requires trustees to properly use

funds entrusted to them. A.S. 13.36.070;

A.S. 11.46.620. Andrews' allegations, if

true, are sufficient to show that

Williams breached Alaska law by seeking

inappropriate reimbursement of travel

expenses.

10

D. Andrews Will Not Need To

Interpret The Terms Of The

Trust Agreement.

Respondent alleges that Andrews was

fired for exceeding his check writing

authority provided in a Trust Agreement.

The terms of the document, however, do

not control. Lingle v. Norge Division of

Magic Chef, Inc., 486 U.S. 399, 108 S.

ct. 1877, 100 L. Ed. 2d 410 (1988).

Instead, it is the motivation of those

who terminated Andrews that determines

whether he was fired in retaliation for

reporting a breach of fiduciary duties.

Id., at 407, 108 S. Ct. at 1882, 100 L.

Ed. 2d at 419-420; Eldridge v. Felec

Services, Inc., 920 F.2d 1434, 1439 (9th

Cir. 1990). Thus, under Lingle, if the

Trustees fired him because they thought

he was reporting a violation of fiduciary

responsibilities, Andrews could maintain

his suit. This is true even if Andrews'

11

report was itself mistaken and Williams

was not violating any fiduciary duty.

Conversely, Andrews would not be able to

maintain his suit if the Trustees fired

him without intending to retaliate for

reporting a fiduciary violation. The

termination would be legitimate even if

Andrews was reporting actual, undisputed

theft of trust funds. The issue is the

Trustee's motivation, not an actual

breach of fiduciary responsibility. Id.

E. Alaska Law Provides Public

Policy Against A Retalitory

Discharae.

Respondent also argues that ERISA is

the source of the public policy that

Andrews alleges was violated. ERISA,

however, is only one source of public

policy in the state. Public policy

includes "the entire body of law in the

state." Luedtke Vv. Nabors Alaska

Drilling Inc., 768 P.2d 1123, 1132

12

(Alaska 1986). Alaska has a public

policy against firing someone for

reporting a breach of fiduciary duty.

Reed v. Municipality of Anchorage, 782

P.2d 1155, 1158 (Alaska 1989) see also

Eldridge v. Felec Services, Inc., 920

F.2d at 1437.

F. ERISA Preemption Provision Was

Intended To Preempt Suits

Requiring Interpretation of

ERISA: Andrews' Suit Is Not

Preempted.

The purpose of the ERISA preemption

provision is to provide for uniform

interpretation of ERISA covered plans.

It is not intended to insulate employers

from state court remedies for injury to

their employees. See Halifax Packing Co.

v. Coyne, Inc., 482 U.S. 1, 107 S. Ct.

2211, 96 L. Ed. 2d 1 (1987). Allowing

Andrews to pursue his claims is

consistent with the purpose of ERISA in

that they do not interpret ERISA or an

13

ERISA governed trust. These state law

claims will not lead to _ divergent

interpretation of ERISA, and will,

therefore, not create ae significant

burden upon administration of the ERISA

governed Trust. The existence of similar

provisions or policies under ERISA does

not mean that Andrews' suit requires

interpretation of ERISA. Allowing

Andrews to proceed with his suit will

allow employees to enforce state laws

enacted for their protection. Improving

protection for employees was’ ERISA's

overall goal. Id.

III. The Existence Of An Alternative

ERISA Remedy Does Not Preempt Alaska

Law.

The fact that ERISA may provide a

cause of action for the facts alleged in

this complaint does not mean that the

ERISA remedy is the only remedy. ERISA

provides that any law, which relates to

14

an ERISA plan, is preempted. 29 U.S.C. §

1144(a). It does not state that

alternative state law causes of action,

which are unrelated to ERISA, are

preempted. It is consistent with the

overall intent of ERISA, which is to

protect employees, to allow unrelated

state laws protecting employee rights to

stand. See Pace v. Signal Technology

Corp., 417 Mass. 154, 160, 628 N.E.2d 20,

22 (Mass. 1994). To now hold, as the

Alaska Supreme Court held, that ERISA

preempts all state remedies to the extent

a remedy is also provided by ERISA would

judicially create broader preemption than

envisioned by Congress.

IV. The Alaska Supreme Court's Decision

Conflicts With Decisions In Other

Jurisdictions.

Respondent attempts to distinguish

conflicting cases with immaterial

distinctions. Respondent contends that

15

cases cited by Andrews” do not conflict

because none of them involve "Section

510", and:

None of the cited cases required

interpretation or application of the

fiduciary responsibility provisions

of ERISA or of the governing plan

document, nor did any involve

relationships among ERISA

cofiduciaries or public. policies

codified in ERISA."

Opposition at 9.

Respondent's argument misses’ the

point. The crucial issue is the scope of

ERISA preemption == whether ERISA

preempts state law causes of action that

do not require interpretation of ERISA or

ERISA governed plans. These cases are

3 General American Life Ins. v. Castonguay, 984

F.2d 1518 (9th Cir 1993); Clarks v. Coats &

Clark, Inc., 865 F.2d 1237 (lith Cir. 1989);

Etheridge v. Harbor House Restaurant, 861 F.2d

39 (9th Cir. 1988); Sorosky v. Burroughs Corp.,

o<6 F.2d 794 (9th Cir. 1987); Lane v. Goren, 743

F.2d 1337 (9th Cir. 1984); Pace v. Signal

Technology Corp., 417 Mass. 154, 628 N.E.2d 20

(Mass. 1994); and Cutler v. Phillips Petroleum

Co., 71 Wash. App. 511, 859 P.2d 1251 (Wash. App.

1993). These cases are summarized on pages 13-17

of the petition.

16

Significant because they hold that ERISA

does not preempt causes of action which

do not require an interpretation of ERISA

or ERISA governed plans. Respondent

attempts to distinguish these cases by

arguing that they do not address the

specific ERISA provisions, which

respondent argues are pertinent here,

= ERISA regulation of fiduciary

relationships. This is not a meaningful

distinction. Andrews is suing under

state law, has only alleged violations of

state law, and will only prevail by

showing a breach of state law. These

cases support his contention that ERISA

does not preempt this suit because it

does not involve an interpretation of

ERISA or ERISA governed plans. The

cases, therefore, provide contrary

authority to the Alaska Supreme Court's

decision.

17

CONCLUSION

For the reasons stated above and in

the petition, the Court should issue the

writ of certiorari.

Respectfully submitted,

Richard H. Friedman

John Bernitz

Counsel for Petitioner

Ronald B. Andrews

18

APPENDIX A - EXCERPTS FROM ANDREWS'

COMPLAINT

COMES NOW plaintiff, by and

through his attorney, Jeffery A.

Friedman, of the Law Office of

Friedman & Rubin, and alleges the

following:

COUNT I

i. The Alaska Operating

Engineers-Employers Training Trust

Fund (hereinafter, Trust) is a trust

fund established pursuant to the

Labor Management Relations Act of

1947, as amended. The purpose of

the Trust is to provide training and

retraining programs for qualified

members of the International Union

of Operating Engineers Local 302.

2. The Trust is governed by

the Labor Management Relations Act

of 1947, as amended, the Employee

Retirement Income Security Act of

Appendix A - Page 1

1974, and other applicable federal

and state laws.

3. Plaintiff was employed by

the Trust as its Administrative

Manager from May of 1985 through

October 31, 1989. Plaintiff is also

a member of the International Union

of Operating Engineers Local 302.

4. Between May of 1985 and

October of 1989, plaintiff

complained several times of improper

trust transactions.

5. During this time and while

performing his duties as

Administrative Manager, plaintiff

found documents indicating that one

of the Trustees of the Trust, George

Williams, may have intentionally or

negligently charged the Trust twice

for the same trust expenses. These

documents also indicated that Mr.

Appendix A - Page 2

Williams may have charged the Trust

for non-trust related expenses.

6. Misuse of Trust funds is a

violation of the public policy of

the State of Alaska and the United

States of America, as well as a

violation of the Employee Retirement

Income Security Act of 1974. Misuse

f Trust funds also has the effect

of reducing the amount of training

benefits available to plaintiff and

other eligible union members.

Ye On October 27, 1989,

plaintiff informed the Trust's

attorney, James Gasper, of the

potentially improper reimbursements

received by Mr. Williams. Mr.

Gasper informed plaintiff that the

statute of limitations on a labor-

management dispute was two years.

8. On October (31, 1989,

plaintiff's employment with the

Appendix A - Page 3

Trust was terminated. Plaintiff's

employment was terminated in order

to prevent him from giving

information and testifying about the

possible misuse of Trust funds.

9. Plaintiff's termination

violated the express public policy

of the State of Alaska and the

United States of America.

10. As a result of the actions

described above, plaintiff suffered

damages in an amount to be

determined at trial, but in any

event greater than $50,000.00.

COUNT II

Aa. Plaintiff realleges the

allegations in paragraphs 1-10,

above.

12. As a part of the contract

of employment between the Trust and

plaintiff, the Trust had an

Appendix A - Page 4

obligation to treat plaintiff fairly

and in good faith.

13. As a part of the contract

of employment between the Trust and

plaintiff, plaintiff had an

obligation to report any possible

misuse of Trust funds that came to

his attention.

14. The Trust breached the

covenant of good faith and fair

dealing by firing plaintiff for

reporting possible misuse of Trust

funds.

15. As a result of the actions

described above, plaintiff suffered

damages in an amount to be

determined at trial, but in any

event greater than $50,000.00.

COUNT III

16. Plaintiff realleges the

allegations in paragraphs 1-15,

above.

Appendix A - Page 5

a7. All of the actions

described above were taken taken

(sic) intentionally, in bad faith

and in disregard of plaintiff's

rights under the terms of his

employment contract, or with

reckless indifference to those

rights. Accordingly, plaintiff is

entitled to punitive damages in an

amount to be proven at trial, but in

any event greater than $50,000.00.

Appendix A - Page 6

APPENDIX B - EXCERPTS FROM

DEPOSITIONS OF THE TRUSTEES

Deposition of Ben Hermon?

Q Why did you decide to fire Mr.

Andrews?

A Well, it appeared to me that

Ron had discontinued to carry

out his duties as training

trust coordinator. The last

three or four months, at least,

that he was there, he just

didn't seem to be doing his job

at all. And for that reason, I

thought that we needed to get

someone in there who would

carry out the duties of the

position.

' This deposition was conducted under oath before a

court reporter on June 26, 1992. The excerpts are

from pages 15-16 and 31-32 of the reporter's

transcripts.

Appendix B - Page 1

What duties was he not carrying

out?

Well, he wasn't -- he wasn't

carrying out any of the orders

of the chairman of the Short

Committee which I belonged to

for one thing. He wasn't

answering phone calls and I was

told that he wasn't doing very

much for the trainees at the

time either, apparently. Or it

seemed to me that Ron _ had

misunderstood his position in

the trust that he was getting

more -- I would say he was --

he thought that his

responsibility was to the union

rather than to the trust

actually.

The fact that the union had

changed hands as far as the

Appendix B - Page 2

people at the head of it were

concerned, the Alberts had

gotten in and George Williams

had became chairman of the

trust. I think that Ron had a

hard time realizing that he was

working for George and the

trust instead of the union.

And for that reason, he --

somehow or other, he didn't

feel that he should take orders

from George and so therefore,

he kind of shirked his

responsibilities and just

didn't do his job.

You don't recall any questions

about whether those purchases

were proper, at least not from

Ron?

Well, there was one little

thing that I didn't consider

Appendix B - Page 3

much weight actually, but Ron

actually paid for the dozer and

it seems like to me the backhoe

or something with a_e check,

Signing the checks. Whereas he

only had authority to sign for

$5,000.00 worth, he signed for

these items which were

considerably more and he

shouldn't have done that. That

was an impropriety.

But that was the only thing

that I remember that was very

far out of line. I think the

Alberts brought up the question

of whether Ron had gone out on

his own actually and bought the

dozer but he didn't.

He and I and one other person -

- I think it was Bob Anders --

went to Tope Equipment and

looked over the equipment and

Appendix B - Page 4

determined that it was

apparently in good shape and

that it was very worthwhile.

The cost of them, I think, was

60 some thousand dollars in

that case and so Ron wasn't --

actually he didn't make the

determination himself. I think

all three of us that were out

there and looked at the machine

decided that it was the one we

wanted and he went ahead and

did the buy. He made out the

check and paid for it.

Appendix B - Page 5

Deposition of Michael Brechan*

Q Do you recall when it was

decided among the management

side to terminate Mr. Andrews?

A No. We had this meeting and we

took this action.

Q Was there any discussion about

taking that action prior to

this meeting.

A. Not that I recall.

Q Was there any discussion about

it at the meeting?

A Yes.

Q What kinds of things were

discussed?

A Basically that he had _. been

having considerable difficulty

taking directions from the

This deposition was conducted before a court

reporter under oath on June 25, 1992. The excerpt

is from pages 22-23 of the reporter's transcript,

Appendix B - Page 6

trustees and performing those

duties and that he had not been

working out well in general

terms with either the _ union

trustees or the management

trustees.

(Pause)

Other than the difficulties

that you mention before that

you personally had with Mr.

Andrews, do you know of any

things that he was doing wrong

that led to his termination?

Not specifically, no.

And was your decision to vote

in favor of firing Mr. Andrews

based on what you were told

during that meeting as well as

your own experiences with him?

Yes, it was.

Appendix B - Page 7

Deposition of Joseph C. Albert?

Q Was there any discussion during

the meeting -- and I'm

referring to the meeting in

which Ron was fired. During

that meeting, was there any

discussion as to why Ron should

be fired, Ron Andrews?

A Same; insubordination, wouldn't

follow orders. That was --

everybody there, to the best of

my knowledge, understood that.

> This deposition was conducted before a court

reporter, under oath on November 19, 1992. This

excerpt is from page 28 of the reporter's transcript.

Appendix B - Page 8

ae

Sel