Opposition Brief — Moore v. International Brotherhood of Electrical Workers, Local 569

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No. 94-4389 \9) fF psereg court

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Supreme Court of the United} States ..

October Term, 1994 EEE ee emeennn

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LAWRENCE MOORE,

Petitioner,

INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS LOCAL 569; PAUL BLACKWOOD; THOMAS

PRIDEMORE; JAMES WESTFALL; JOE HEISLER; DICK

SMITH; TERRY GODSHALK, ET AL.; INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS; J.J.

BARRY; S.R. McCANN; RICHARD ROBBINS;

ATKINSON MECHANICAL, INC,;

FISCHBACK & MOORE, INC.,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

°

RESPONDENT’S BRIEF IN OPPOSITION

4

BARBARA L. CHRISTIANSEN, Esa.

Counsel of Record

LittLer, MENDELSON, FASTIFE,

TicHy & MATHIASON

A Professional Corporation

400 Capitol Mall, 16th Floor

Sacramento, California 95814

Telephone: (916) 448-7100

Counsel for Respondent,

Walsh Construction Company, an

Operating Division of Guy F.

Atkinson Company, a Nevada

corporation, as successor to

Atkinson Mechanical Contractors

Company

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

As to Respondent Atkinson Mechanical Contractors

Company, the sole question presented is whether the ~

United States Court of Appeals for the Ninth Circuit

properly affirmed the order of the United States District

Court, Southern District, California granting Respondent

Atkinson’s Motion for Summary Judgment as to Peti-

tioner’s single claim for relief against said Respondent, to

wit, breach of implied or in-fact contract predicated on

breach of collective bargaining agreement pursuant to

Section 301(a) of the Labor Management Relations Act, 29

U.S.C. § 185(a), where: (1) the Ninth Circuit affirmed the

district court’s finding that said Respondent exercised

lawfully its express rights under the agreement; and (2)

the National Labor Relations Board possesses exclusive

jurisdiction of Petitioner’s claim that said Respondent

violated Section 8(a) of the National Labor Relations Act,

29 U.S.C. § 158(a).

ii

LIST OF PARENT

COMPANIES AND SUBSIDIARIES

Pursuant to The Rules of the Supreme Court of the

United States, Rule 29.1, Respondent Walsh Construction

Company, an Operating Division of Guy F. Atkinson

Company, a Nevada corporation, as successor to Atkin-

son Mechanical Contractors Company, hereby states:

Guy F. Atkinson Company, a Nevada corporation, is

a wholly owned subsidiary of Guy F. Atkinson Co. of

California, a Delaware corporation. Guy F. Atkinson Co.

of California is a publicly traded corporation.

iii

TABLE OF CONTENTS

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

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A. Facts Material to Petitioner’s Claim Against

Respondent Atkinson........................

1. Petitioner’s Misstatements of Fact........

a

REASONS WHY THE PETITION SHOULD BE

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I. The Petition Improperly Requests This Court

To Review Concurrent Findings of Fact by

WU TN ME 6 vere eaccchnscsscevces

II. The Petition Does Not Present a Question As

to Whether a United States Court of Appeals

Has Decided a Federal Question in a Way

That- Conflicts with Applicable Decisions of

A his hats ae ays ces eck s

III. The Petition Does Not Call for an Exercise of

This Court’s Power of Supervision..........

EE re

11

11

iv

TABLE OF AUTHORITIES

Page

CASES

Breininger v. Sheet Metal Workers International Associa-

tion Local Union No. 6, 493 U.S. 67 (1989) .... 15, 16, 17

Furness, Withy & Company v. Yang-Tsze Insurance

Association, 242 VS. SA CAGE) sewesiseadevssiciee 15

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)..... 12

Layne & Bowler Corp. v. Western Well Works, Inc.,

A ry Se Es 4h oka led nv a ke ey a eea enn: 18

San Diego Building Trades Council v. Garmon, 359

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Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957) .... 15

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STATUTES AND RULES

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The Rules of the Supreme Court of the United States,

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No. 94-439

¢

In The

Supreme Court of the United States

October Term, 1994

7

LAWRENCE MOORE,

Petitioner,

INTERNATIONAL BROTHERHOOD OF ELECTRICAL

WORKERS LOCAL 569; PAUL BLACKWOOD; THOMAS

PRIDEMORE; JAMES WESTFALL; JOE HEISLER; DICK

SMITH; TERRY GODSHALK, ET AL.; INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS; J.J.

- BARRY; S.R. McCANN; RICHARD ROBBINS;

ATKINSON MECHANICAL, INC.;

FISCHBACK & MOORE, INC.,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢ :

RESPONDENT’S BRIEF IN OPPOSITION

-¢

JURISDICTION

The Memorandum of the Ninth Circuit Court of

Appeals was filed on June 10, 1994. Petitioner invokes the

_ jurisdiction of this Court under The Rules of the Supreme

Court of the United States, Rule 10.

*

STATUTORY PROVISIONS INVOLVED

Section 301(a) of the Labor Management Relations

Act, 29 U.S.C. § 185(a), provides, in pertinent part, that

suits for violation of contracts between an employer and

a labor organization representing employees in an indus-

try affecting commerce may be brought in any district

court of the United States having jurisdiction of the par-

ties.

Section 8(a) of the National Labor Relations Act, 29

U.S.C. § 158(a) provides, in pertinent part, that it shall be

an unfair labor practice for an employer: (1) to interfere

with, restrain or coerce employees in the exercise of the

rights guaranteed in Section 157 of this title; and (2) by

discrimination in regard to hire or any term or condition

of employment to encourage or discourage membership

in any labor organization.

The Respondent, Walsh Construction Company, an

Operating Division of Guy F. Atkinson Company, a Nev-

ada corporation, as successor to Atkinson Mechanical

Contractors Company (hereinafter “Respondent Atkin-

son” or “Atkinson”), respectfully requests that this Court

deny the Petition for Writ of Certiorari in which Peti-

tioner, Lawrence Moore, seeks review of the Ninth Cir-

cuit’s Memorandum filed on June 10, 1994 in this case.

Said Memorandum is set forth at page 111 of the Supple-

mental Appendix to the Petition for Writ of Certiorari

(hereinafter “Pet. Supp. App.”) filed by Petitioner herein.

STATEMENT

The Rules of the Supreme Court of the United States,

Rule 14.1.(g) requires that a petition for writ of certiorari

contain a concise statement of the case containing the

facts material to the consideration of the questions pre-

sented. Petitioner’s Statement of the Case does not com-

ply with the foregoing mandate. (See Petition for Writ of

Certiorari filed by Petitioner Lawrence Moore, hereinafter

cited as “Pet.,” at 2-36.) To assist this Court in the exercise

of its discretionary jurisdiction, Respondent Atkinson

hereinbelow sets forth the material facts and the proceed-

ings below with citations to the record which pertain to

Petitioner’s action for breach of collective bargaining

agreement against Respondent Atkinson. !

A. Facts Material to Petitioner’s Claim Against

Respondent Atkinson

At times relevant to this action, Respondent Atkinson

and Respondent International Brotherhood of Electrical

Workers Local 569 (hereinafter “Local 569”) were signato-

ries to a collective bargaining agreement, designated Pro-

ject Construction Labor Agreement (hereinafter “Project

Agreement”).?

1 All citations herein to “CD at ___” refer to the civil docket

entries by the Clerk of the United States District Court for the

Southern District of California in District Court Docket No.

CV-87-0172 B(M). A copy thereof was transmitted to the Ninth

Circuit Court of Appeals by the Southern District Docket Court

Clerk.

? Although Petitioner’s Second Amended Complaint

makes some reference to an “inside agreement” between

The Project Agreement was attached to the initial

Complaint filed by Petitioner. (CD at 1.) The Recognition

Clause of the Project Agreement provides that the Agree-

ment applies to the “craft employees employed on the

project” (emphasis added). (CD at 1; Project Agreement,

Art. II at 3.) The Project Agreement Management Rights

clause further provides at Article VII, subdivision F., “The

Employer shall retain the right to reject any applicant

referred by the Union.” (CD at 1; Project Agreement at 9.)

Article XI provides:

Section 1. The Employer shall have the right to

reject any applicant referred by the Union... .

Section 3. In the event referral facilities main-

tained by the Union are unable to fill the requi-

sition of the Employer .. . within 48

hours . . . the Employer shall be free to obtain

workers from any source.

(CD at 1; Project Agreement at 17.)

On October 23, 1986, Billy Wells (hereinafter

“Wells”), Atkinson’s assistant electrical superintendent,

issued a request to the Local 569 hiring hall for the

referral of two electricians. (Supplemental Excerpts of

Record of Defendant/Appellee Atkinson Mechanical,

Atkinson and Local 569, the Project Agreement is the only

agreement to which Atkinson was signatory on October 24, 1986

with Local 569. Atkinson was not signatory to any “inside

agreement.” (CD at 267; Declaration of Kent Senior filed with

Defendant Atkinson’s Motion for Summary Judgment on Octo-

ber 27, 1989 (hearing date: February 12, 1990).) Petitioner has

presented no evidence to the contrary.

| a RT TE ROE

hereinafter cited “Atkinson SER,” filed concurrently with

Atkinson’s Answering Brief in the Ninth Circuit, Tran-

script of Deposition of Billy Wells, hereinafter cited as

“Wells Dep.,” Atkinson SER at 250-51; Wells Dep. at

18-19:1-20.)

On October 24, 1986, Local 569 personnel informed

Wells that Petitioner and Walter Whelan had been

referred in response to Wells’ request. (Atkinson SER at

241, 252; Wells Dep. at 19:13-20, 20:1-3.) Although Peti-

tioner, on appeal and herein, contends that Wells rejected

Petitioner’s referral for Petitioner’s “union-connected

activities,” (Pet. at 8), the facts before the district court

were otherwise.

Wells testified that he was familiar with Petitioner’s

reputation as litigious and a troublemaker. (Atkinson SER

at 257, 277-78; Wells Dep. at 25:10-12, 45:13-25, 46:1-14.)

Wells was also familiar with the Project Agreement provi-

sion which allowed Atkinson to reject a hiring hall refer-

ral for any reason or no reason. (Atkinson SER at 252-53,

263; Wells Dep. at 20:18-25, 21:1-6, 32:23-25, 33:1.) Wells

did not wish to accept Petitioner’s referral because he

believed Petitioner would disrupt his crew. (Atkinson

SER at 255, 257; Wells Dep. at 23:14-16, 25.) Wells spoke to

the Atkinson foreman under whom Petitioner would be

working to obtain his opinion before Wells rejected Peti-

tioner. (Atkinson SER at 255-53, 256, 257; Wells Dep. at

20:21-25, 21:1-6, 24:20-25, 25:1-3.) Wells also conferred

with Atkinson’s Project Manager, who took the precau-

tion of consulting the Company attorney and confirmed

that the Project Agreement authorized him to reject Peti-

tioner’s referral with or without cause. (Atkinson SER at

252, 253; Wells Dep. at 20:18-24, 21:1-7.) Wells testified

that he rejected Petitioner as part of his obligation to

screen potential employees and pick the best ones he

could find to do the job for his employer’s advantage.

(Atkinson SER at 282; Wells Dep. at 50:1-5.)

After conferring with the Project Manager, Wells tele-

phoned Local 569 personnel, Rick White and Dick Smith,

to reject the referral of Petitioner and Whelan but was

informed that they had already been dispatched. (Atkin-

son SER at 259; Wells Dep. at 27:6-23.) When Wells

informed the representative of Local 569 that he intended

to “turn around” Petitioner and Mr. Whelan, the repre-

sentative informed Wells that it was “his prerogative.”

(Atkinson SER at 259; Wells Dep. at 27:15-18.)

1. Petitioner’s Misstatements of Fact

Pursuant to The Rules of the Supreme Court of the

United States, Rule 15.1., a brief in opposition to a peti-

tion for writ of certiorari “should address any misstate-

ments of fact set forth in the petition which have a

bearing on the question of what issues would properly be

before the court if certiorari were granted.” Respondent

Atkinson hereinbelow addresses the factual misstate-

ments set forth in the Petition.

As to Respondent Atkinson, Petitioner states that

“thje sued Atkinson Mechanical Contractors, Inc. .. . and

Local 569 officers after they blacklisted him and rejected

his acceptance of Atkinson’s CBA request for an electri-

cian.” (Pet. at 6.) Petitioner’s statement is misleading by

virtue of Petitioner’s use of the pronoun “they.” Peti-

tioner’s only claim against Respondent Atkinson is for

breach of collective bargaining agreement based on said

Respondent’s having rejected Petitioner after he was

referred to work by Local Union 569’s hiring hall on

October 24, 1986. Respondent Atkinson did not blacklist

Petitioner.

Petitioner states that “Moore’s hiring hall referral to

Atkinson Mechanical in October, 1986 was rejected

despite not working for it before and not knowing super-

visor Billy Wells, who admitted rejecting him for pro-

tected ‘union-connected’ activities.” (Pet. at 8.)

Petitioner’s statement that supervisor Wells did not know

Petitioner is controverted by Wells’ deposition testimony

that he had known Petitioner for five or ten years before

Wells rejected Petitioner’s referral from Local 569 on

October 24, 1986. (Atkinson SER at 238; Wells Dep. at

6:3-9.) Petitioner's statement that Wells rejected Petitioner

for protected “union-connected” activities is controverted

by the entirety of Wells’ testimony on this point. In fact,

Wells had observed Petitioner engage in what Wells con-

sidered to be not only disruptive but illegal conduct

when Wells worked with Petitioner. (Atkinson SER at 278;

Wells Dep. at 46:2-10.) Moreover, Wells testified that, in

his opinion, Petitioner “doesn’t give a damn about the

569 or anybody else; he’s going to take anyone down he

can or he’s going to make a mint off of him.” (Atkinson

SER at 47; Wells Dep. at 47:11-20.)

Petitioner’s statement concerning the manner in

which Wells was hired by Respondent Atkinson, (Pet. at 8

n.5), is immaterial to Petitioner’s claim for breach of

collective bargaining agreement.

Petitioner states that “in a deposition Wells acknowl-

edged his sympathetic relationship with Smith and the

other Defendants in this case.” (Pet. at 8 n.5.) Petitioner’s

statement misrepresents Wells’ testimony that Wells and

the individual Defendants herein were not even social

friends but merely acquaintances who he might see at a

union hall or picnic or with whom he might have “a beer

after work.” (Atkinson SER at 275-77; Wells Dep. at

43:21-25, 44-45:1-6.)

Petitioner’s statement that Smith, White and Wells

had several telephone conversations after Petitioner had

been dispatched to Respondent Atkinson’s jobsite and

that Wells said he would reject Petitioner, (Pet. at 9), may

imply that Wells’ decision to reject Petitioner resulted

from such conversations. Any such implication is contro-

verted by Wells’ testimony that he telephoned White and

Smith and told them that he was going to reject Peti-

tioner’s referral. (Atkinson SER at 259; Wells Dep. at

27:8-18.)

Petitioner states that “[a] motion to compel discovery

from Atkinson was never acted on [sic].” (Pet. at 17.) Said

statement is not only irrelevant to the question herein

presented, but, in fact, Respondent Atkinson provided

further responses to Petitioner’s discovery requests prior

to the hearing on Petitioner’s Motion to Compel. (Atkin-

son SER at 169-99.)

Petitioner’s statement that “the court said Atkinson

breached the CBA by refusal to participate in hearings,”

(Pet. at 27), is neither supported by any citation to the

record nor material to Petitioner’s sole claim that Respon-

dent Atkinson breached the collective bargaining agree-

ment by rejecting his referral.

Petitioner’s statement concerning Wells’ purported

testimony at trial, (Pet. at 30, 31), is immaterial to the

question whether the court of appeals properly affirmed

the district court’s grant of summary judgment in favor of

Respondent Atkinson. Further, Petitioner’s statement that

Wells testified at trial that Wells intended to “knock

[Moore] on his butt,” (Pet. at 30), appears to be an excerpt

from Wells’ deposition testimony. In that regard, Wells

testified that after October 24, 1986, he had encountered

Petitioner at the union hall in San Diego and at Local 357

on two to four occasions wherein Petitioner “began to get

on [Wells’] case about another matter” and, on one occa-

sion, Wells had told Petitioner “to get off my back or

[Wells] was going to take him out which meant [Wells]

was going to knock him on his butt.” (Atkinson SER at

265-66; Wells Dep. at 33:16-25, 34:1-13.)

In short, Petitioner’s effort to cast Wells in a

Machiavellian role is not supported by the record. Based

on Wells’ personal observation of Petitioner and Peti-

tioner’s- reputation, Wells held the opinion that Peti-

tioner’s conduct was disruptive, unlawful, and motivated

solely by self-interest. Based on his opinion and without

union encouragement, Wells decided to reject Petitioner’s

hiring hall referral and did so after confirming that the

Project Agreement permitted such rejection. Thus, con-

trary to Petitioner's Statement of Facts, the record estab-

lishes neither breach of collective bargaining agreement

nor violation of Petitioner’s rights to engage in protected,

concerted activity.

10

B. Proceedings Below

Petitioner’s Second Amended Complaint, filed on

December 21, 1988, alleged a single cause of action

against Respondent Atkinson: a Fifth Cause of Action for

breach of implied or in-fact contract under the rubric of

“Discriminatory Dispatching.” (CD at 107; Second

Amended Complaint at 13:7-28, 14:1-10.)

On October 30, 1989, Respondent Atkinson filed a

Notice of Motion and Motion for Summary Judgment or

Alternatively for Summary Adjudication of Issues and

accompanying papers. (CD at 204, 263, 265, 266, 267.)

Thereafter, Petitioner separately served Opposition

papers to Atkinson’s Motion for Summary Judgment, (CD

at 284, 285, 286); Respondent Atkinson filed its papers in

reply to Petitioner’s separate opposition papers, (CD at

294, 295, 296); and Petitioner filed a Supplemental Decla-

ration in Opposition to Atkinson’s Motion for Summary

Judgment. (CD at 301.)

The district court’s Order Granting Atkinson

Mechanical’s Motion for Summary Judgment was filed on

May 10, 1990, and entered. (CD at 317; Pet. Supp. App. at

3-4.)

On May 11, 1990, the separate Judgment in a Civil

Case which ordered and adjudged that Atkinson Mechan-

ical’s Motion for Summary Judgment as to the allegations

of Petitioner’s Fifth Cause of Action in the Second

Amended Complaint be granted was signed, entered and

copies thereof mailed. (CD at 318; Judgment in a Civil

Case, Case No. 87-0172 B(M).)

11

Notwithstanding the district court’s instruction to

Petitioner at the summary judgment hearing on April 16,

1990, that the court’s order granting summary judgment

was a final order as to Atkinson and immediately appeal-

able and, further, that Petitioner must file a timely appeal

therefrom to protect any rights he might have to appeal,

Petitioner took no action to appeal said order until he

filed an appeal to the Ninth Circuit on April 17, 1992.

On November 2, 1992, Respondent Atkinson filed in

the Ninth Circuit a Motion to Dismiss Plaintiff /Peti-

tioner’s appeal as untimely. By Orders dated November

27 and December 23, 1992, the Ninth Circuit denied

Respondent’s said motion.

By Memorandum filed June 10, 1994, the Ninth Cir-

cuit affirmed the district court’s grant of summary judg-

ment for Respondent Atkinson on Petitioner’s breach of

contract claim. The Ninth Circuit found that the Project

Agreement “allowed an employer to reject an employee,

provided the employer did not discriminate on the basis

of union activity. . . . In rejecting Petitioner because he

was litigious and disruptive, Atkinson did not breach the

terms of the Agreement.” (Pet. Supp. App. at 125-26.)

+

REASONS WHY THE PETITION

SHOULD BE DENIED

I. The Petition Improperly Requests This Court To

Review Concurrent Findings of Fact by Two Courts

Below

“A court of law, such as this Court is, rather than a

court for correction of errors in factfinding, cannot

12

undertake to review concurrent findings of fact by two

courts below in the absence of a very obvious and excep-

tional showing of error.” Goodman v. Lukens Steel Co., 482

U.S. 656, 665 (1987). As to Respondent Atkinson, the sole

task which Petitioner would have this Court undertake is

a review of concurrent findings of fact by two courts

below, in which findings Petitioner demonstrates no error

at all.

In its Memorandum opinion herein, the Ninth Circuit

addressed Petitioner’s claim that Respondent Atkinson

“breached the regional collective bargaining agreement

by refusing to hire him.”? (Pet. Supp. App. at 123.) The

Ninth Circuit concurred with the district court’s grant of

summary judgment on the factual ground that the collec-

tive bargaining agreement which formed the predicate for

Petitioner’s breach of contract claim against Atkinson

“allowed an employer to reject an employee, provided

the employer did not discriminate on the basis of union

activity... .” (Pet. Supp. App. at 125-26.) The Ninth

Circuit further concurred with the district court’s factual

3 As to Respondent Atkinson, Petitioner poses fcr review

the question “[c]an the union business manager (who was once

the defense contractor’s supervisor and is one of the racketeers) |

and another contractor’s supervisor collude to reject/ blacklist a

member properly referred through the CBA job refe-ral pro- j

cedure in order to punish him for protected union activities |

(suing the union and officers, and running for union office)?”

(Pet. at i.) As evidenced by the facts hereinabove set forth in

Respondent's Statement, the question as posed by Petitioner

lacks any support in the record below and, for that reason, must

be disregarded as presenting an improper question for review.

ome)

13

finding that, “[i]n rejecting Moore because he was liti-

gious and disruptive, Atkinson did not breach the terms

of the Agreement.” (Pet. Supp. App. at 126.)

The express language of the Project Agreement which

governed hiring hall referrals herein establishes the pro-

priety of the Ninth Circuit’s concurrence with the district

court’s factual finding that the collective bargaining

agreement allowed an employer to reject an employee on

nondiscriminatory grounds. (See CD at 1; Project Agree-

ment at 3, 9, 17.) Thus, Petitioner cannot show error in the

Ninth Circuit’s concurrence with the district court that

the Project Agreement gave Respondent Atkinson the

right to reject Petitioner’s referral. Accordingly, Petitioner

cannot establish a viable basis for review by this Court on

this point.

Similarly, that the Ninth Circuit concurred with the

district court’s factual finding that Respondent Atkin-

son’s reasons for Petitioner’s rejection did not breach the

collective bargaining agreement does not constitute a

proper subject of review on writ of certiorari. In that

regard, Petitioner’s assertion that “[t]here was nd evi-

dence that Petitioner was ‘disruptive’ when Atkinson was

granted summary judgment... ,” (Pet. at 47), posits only

an evidentiary question which would require this Court

to review the record to determine whether sufficient evi-

dence existed for the district court’s conclusion that

Respondent Atkinson rejected Petitioner’s referral for

reasons allowed by the collective bargaining agreement.

Moreover, as set forth in the recitation of facts herein, the

record is replete with evidence which was before the

district court that Petitioner’s conduct was, inter aiia,

disruptive on the job. In view of the Ninth Circuit's

14

express concurrence with the district court’s factual find-

ing that Petitioner was rejected for reasons allowed by

the collective bargaining agreement, review thereof is

precluded by this Court’s historic refusal to review con-

current findings of fact by two courts below.

Petitioner not only fails to make the requisite show-

ing of obvious and exceptional error, but fails to show

any error at all in the Ninth Circuit’s concurrence with

the factual findings on which the district court granted

summary judgment as to Petitioner’s claim of breach of

collective bargaining agreement against Respondent

Atkinson. Thus, this Court should deny the instant Peti-

tion for Writ of Certiorari.

II. The Petition Does Not Present a Question As to

Whether a United States Court of Appeals Has

Decided a Federal Question in a Way That Conflicts

with Applicable Decisions of This Court

The Rules of the United States Supreme Court, Rule

10.1.(c) includes as a reason for granting a writ of cer-

tiorari that “a United States court of appeals .. . has

decided a federal question in a way that conflicts with

applicable decisions of this Court.” Petitioner asserts that

refusal to permit his breach of contract action to be liti-

gated against Respondent Atkinson conflicts with deci-

sions of this Court. (Pet. at v, 42.)

Preliminarily, Respondent Atkinson brings to this

Court’s attention that Petitioner’s commingling of his

argument concerning his action for breach of collective

bargaining agreement against Respondent Atkinson with

his action for breach of duty of fair representation against

15

Respondents “Union Defendants” not only obscures the

question presented as to Respondent Atkinson but exhibits a

disregard for this Court’s admonition that petitions be “care-

fully prepared, contain appropriate references to the record,

and present with studied accuracy, brevity and clearness

whatever is essential to ready and accurate understanding of

points requiring [this Court's] attention. ... ” Furness, Withy

& Company v. Yang-Tsze Insurance Association, 242 U.S. 430,

434 (1917) (emphasis in original). Specifically, Petitioner’s

citations to numerous decisions of the National Labor Rela-

tions Board (“NLRB”) in connection with unfair labor prac-

tice charges, (Pet. at 43-45, 47-48), are inapposite to

Petitioner’s claim against Respondent Atkinson for breach of

collective bargaining agreement under Section 301(a) of the

Labor Management Relations Act, 29 U.S.C. § 185(a). See

Textile Workers v. Lincoln Mills, 353 U.S. 448, 451 (1957).

Petitioner blatantly misrepresents to this Court that

Petitioner may base his claim of breach of collective bar-

gaining agreement against Respondent Atkinson under

Section 301 on a claim that Respondent Atkinson commit-

ted an unfair labor practice under Section 8(a) of the

National Labor Relations Act, 29 U.S.C. § 158(a). (See Pet.

at 43-47 (e.g., “both Atkinson and Local 569 officers com-

mitted an unfair labor practice” (Pet. at 46).) In that

regard, the sole decision of this Court cited by Petitioner

which even discusses Section 301, Breininger v. Sheet Metal

Workers International Association Local Union No. 6, 493

U.S. 67 (1989), does not so hold.

Petitioner cites Breininger for the erroneous proposi-

tion that “[fJederal courts have concurrent jurisdiction

with the NLRB over breaches of a union’s duty of fair

representation in the administration of a hiring hall and

16

an accompanying suit against a contractor for breach of

contract.” (Pet. at 42.) Petitioner’s error is found in the

fact that Breininger merely holds that federal courts have

concurrent jurisdiction with the NLRB over an unfair

labor practice charge against a union when such charge

also might constitute a claim of breach of the union’s

duty of fair representation. Breininger, 493 U.S. at 75.

Breininger neither addressed whether nor held that fed-

eral courts have concurrent jurisdiction with the NLRB

over an employee’s claim for breach of collective bargaining

agreement against an employer under Section 301 of the Labor

Management Relations Act. Further, Breininger neither -

addressed whether nor held that federal courts have con-

current jurisdiction with the NLRB over an employee’s

unfair labor practice charge against an employer under Section

8(a) of the National Labor Relations Act.

In Breininger, this Court addressed, in pertinent por-

tion, whether the NLRB has exclusive jurisdiction over a

claim that a union both breached its duty of fair represen-

tation and violated the Labor-Management Reporting and

Disclosure Act of 1959, 29 U.S.C. § 401 et seq. by discrimi-

nating in union hiring hall referrals. Breininger, 493 U.S.

at 70. This Court held that federal court jurisdiction exists

over a fair representation claim against the union, irrespec-

tive of whether such claim arose out of the operation of

union hiring halls so as to constitute an unfair labor

practice charge against a union under Section 8(b) of the

National Labor Relations Act, 29 U.S.C. § 158(b). Id. at

74-75. In so holding, this Court iterated the general prin-

ciple that “neither state nor federal courts possess juris-

diction over claims based on activity that is “arguably”

subject to §§ 7 or 8 of the NLRA.” Breininger, 493 U.S. at

17

74 (citing San Diego Building Trades Council v. Garmon, 359

U.S. 236, 245 (1959)). Nevertheless, based on the rationale

and holding in Vaca v. Sipes, 366 U.S. 171, 177 (1967) “that

Garmon’s pre-emption rule does not extend to suits

[against a union] alleging a breach of the duty of fair

representation[,]” this Court concluded “[t]hat a breach

of the duty of fair representation might also be an unfair

labor practice is thus not enough to deprive a federal

court of jurisdiction over the fair representation claim.”

Breininger, 493 U.S. at 74-75.

Accordingly, Breininger does not stand, as Petitioner

implies, for the proposition that the Vaca fair representa-

tion exception to Garmon’s preemption rule operates to

extinguish the NLRB’s exclusive jurisdiction over an

unfair labor practice brought pursuant to Section 8(a) of

the National Labor Relations Act against an employer.

Further, Petitioner has not cited and cannot cite any

decisions of this Court which would oust the NLRB of

exclusive jurisdiction over Petitioner’s claim under Sec-

tion 8(a) that Respondent Atkinson committed an unfair

labor practice when it rejected Petitioner’s hiring hall

referral so as to permit the district court to consider such

claim in connection with Petitioner’s Section 301 claim

for breach of collective bargaining agreement.

As demonstrated, Petitioner offers no decision of this

Court which conflicts with the Ninth Circuit’s conclusion

that the district court properly adjudicated Petitioner’s

Section 301 breach of collective bargaining agreement

claim against Respondent Atkinson. Thus, Petitioner

again fails to provide a reason which would warrant

review by this Court and writ of certiorari should be

denied.

18

III. The Petition Does Not Call for an Exercise of This

Court’s Power of Supervision

The Rules of the Supreme Court of the United States,

Rule 10.1.(a) includes as a reason for grant of certiorari

that “a United States court of appeals . . . has so far

departed from the accepted and usual course of judicial

proceedings, or sanctioned such a departure by a lower

court, as to call for an exercise of this Court’s power of

supervision.”

Petitioner asserts “[t]he Appeals Court’s affirmation

of unfair labor practices by holding the employer could

reject under the CBA if he didn’t discriminate on the

basis of ‘union activity-or race or sex’... overstepped the

boundaries of accepted procedure to sanction lower court

departure from the usual course of judicial proceedings

so as to require exercise of this Court’s power of supervi-

sion.” (Pet. at 48.)

As demonstrated herein, Petitioner’s invocation of

this Court’s power of supervision is rendered nugatory

by the absence from the record below of any indication

that the Ninth Circuit departed in any manner from the

usual course of judicial proceedings or sanctioned such

departure by a lower court by affirming the district

court’s grant of summary judgment in favor of Respon-

dent Atkinson on the grounds stated in the Ninth Cir-

cuit’s Memorandum.

This Court has emphasized that it will not grant a

writ of certiorari “except in cases involving principles the

settlement of which is of importance to the public as

distinguished from the parties. ...” Layne & Bowler Corp.

v. Western Well Works, Inc., 261 U.S. 388, 393 (1923). As to

19

Respondent Atkinson, Petitioner’s request for review

amounts to no more than an impermissible request that

this Court review concurrent findings of fact by two

courts below as to Petitioner’s claim that Atkinson

breached the collective bargaining agreement. Hence, as

to Respondent Atkinson, Petitioner’s case presents nei-

ther any issue of public importance nor any special and

important reason for review by this Court and Peti-

tioner’s request for review on writ of certiorari should be

denied.

CONCLUSION

For these reasons, the Petition for a Writ of Certiorari

should be denied.

DATED: October 11, 1994

Respectfully submitted,

BARBARA L. CHRISTIANSEN, Esa.

Counsel of Record

LittLer, MENDELSON, FASTIFF,

TicHy & MATHIASON

A Professional Corporation

400 Capitol Mall, 16th Floor

Sacramento, California 95814

Telephone: (916) 448-7100

Counsel for Respondent