Opposition Brief — Beals v. Kiewit Pacific Co.

an

Supreme Gourt, U.S.

FIL ED

2 JAN 8 1998

No. 97-782 eran

In The

Supreme Court of the United States

October Term, 1997

/

BRENT BEALS,

Petitioner,

KIEWIT PACIFIC COMPANY, INC.,

Respondent.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

*

KosayASHI, Sucita & GoDA

Ernest H. Nomura*

CuHarLes W. GALL

999 Bishop Street, Suite 2600

First Hawaiian Center

Honolulu, Hawaii 96813

(808) 539-8700

Counsel for Respondent

* Counsel of Record

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Ninth Circuit correctly held that an employee whose

employment was covered under the terms of a collective

bargaining agreement could not assert a breach of con-

tract claim based on Hawaii state law against his former

employer because Section 301 of the Labor Management

Relations Act, 29 U.S.C. § 185(a), preempts such a claim,

as adjudication of the claim substantially depended on an

interpretation of the collective bargaining agreement and

the contract upon which the employee based his claim

was subsumed by the collective bargaining agreement.

ii

LIST OF INTERESTED PARTIES

Pursuant to Rule 29.6 of the Rules of the Supreme

Court of the United States, Respondent Kiewit Pacific Co).

discloses as follows: Respondent Kiewit Pacific Co.’s par--

ent company is Kiewit Construction Company. Respon:-

dent Kiewit Pacific Co. does not have any nonwholly

owned subsidiaries.

ili

TABLE OF CONTENTS

Page

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I. SUMMARY OF ARGUMENT.................. 3

II. THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT’S DECISION IS

CONSISTENT WITH THIS COURT’S DECI-

Ill. THERE IS NO “CONFLICT AMONG THE CIR-

CUITS” ON WHETHER CLAIMS SUCH AS

PETITIONER’S ARE PREEMPTED BY THE

LABOR MANAGEMENT RELATIONS ACT.... 10

PE vice cebevcessastwvsvsccscevstey tows 20

iv

TABLE OF AUTHORITIES

CASES

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202 (1985)...... 7

Anderson v. Ford Motor Co., 803 F.2d 953 (8th Cir.

1986), cert. denied, 483 U.S. 1011 (1987)

jrond si pig rin ta eoe Be heed ee Re eRe 10, 11, 13, 15, 16

B.F. Goodrich Co., 115 N.L.R.B. 722 (1956)............. 1

Beals v. Kiewit Pacific Co., 114 F.3d 892 (9th Cir.

nf EE See ee ana Porky ‘; 3 36. ia, 39, 2

Berda v. CBS, Inc., 881 F.2d 20 (3d Cir. 1989), cert.

denied, 493 U.S. 1062 (1990)............ 10, 11, 12, 13

Calleon v. Miyagi, 76 Haw. 310, 876 P.2d 1278 (Haw.

RFR ik. k 5s Ga Carne ae> eWESSe 6 LDR SLA CRO sss 7

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) .. passim

Cleary v. American Airlines, Inc., 111 Cal. App. 3d

GES: SUNG bs Soin 9 isn nn Cine Cay ese a Ee REE EN eee cas o> 5

Darden v. U.S. Steel Corp., 830 F.2d 1116 (11th Cir.

BONER os in 055 kee seckud banes Ren os 18, 20

Eitmann v. New Orleans Pub. Serv., Inc., 730 F.2d

359 (5th Cir. 1984), reh’g denied, 738 F.2d 437,

cert. denied, 469 U.S. 1018 (1984)....... 16, 17, 18, 19

J.I. Case Co. v. NLRB, 321 U.S. 332 (1944)....8, 9, 13, 15

Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399

By Re Pen eRe Tee pi eee ee epee a ODEN ae 6

NLRB v. Hendricks County Rural Elec. Membership

Cy ee Sra Be IIE ook 8005548 Fas kkk Seas 1

Pugh v. See’s Candies, Inc., 116 Cal. App. 3d 311

COPE <6 cbs d vader bare hax meketaneeeuus tac Ms yee

Vv

TABLE OF AUTHORITIES - Continued

Page

United Steelworkers of America v. American Mfg. Co.,

Pe Ne I SE 5 Ad wine ey daca ke Vo wa a aks 0.470. q

United Steelworkers of America v. Enterprise Wheel &

Car Carp, 20d Ue. FO OGG. nw senin ens vsecscesces 7

United Steelworkers of America v. Warrior & Gulf

Navigation Co., 363 U.S. 574 (1960)................. 8

Vieira v. Robert's Hawaii Tours, Inc., 2 Haw. App.

Ss SOE BANE IED bo wee een oeeenecSacsecrscces 6

White v. National Steel Corp., 938 F.2d 474 (4th Cir.

1991), cert. denied, 502 U.S. 974 (1991)............. 16

STATUTES

ee ee SE sigs Ni wap hs ane Ve aed wes Sk cae i, 3

RULES OF THE SUPREME CoOuRT OF THE UNITED STATES

ES SAB TSE RE OE eee AOR Al os ROE A TO Te ees Tb Rega, ii

ES 0k VE EATS Ps Ws RAs 1

JURISDICTION

This case was docketed on November 10, 1997. Pur-

suant to Rule 30.4 of the Rules of the Supreme Court of

the United States (“Rules”), an application to extend time

to file this Brief in Opposition and other documents

under the Rules was made on December 2, 1997. The

Clerk of the Court extended the time to file the Brief in

Opposition and other documents under the Rules until

January 9, 1998. The Brief in Opposition, accordingly, is

timely filed.

STATEMENT OF THE CASE

Respondent agrees with the statement of the case as

set forth in the United States Court of Appeals for the

Ninth Circuit’s opinion. Beals v. Kiewit Pacific Co., 114 F.3d

892 (9th Cir. 1997). Respondent, however, disputes the

following additional “facts” that are set forth in Peti-

tioner’s Petition for Writ of Certiorari (“Petition”). In

particular, the additional “facts” are irrelevant to the

Court’s consideration of the issue involved in this case.

1. Whether the collective bargaining agreement

(“CBA”) excluded from its scope of coverage certain

“confidential employees” is irrelevant. See Petition at 6.

Petitioner appears to make much of the disputed fact that

he was told to keep the terms of the “move letter” “confi-

dential,” and that this request made him a “confidential

employee.” Petitioner is wrong and he was never a “con-

fidential employee” who was excluded from coverage

under the CBA. NLRB v. Hendricks County Rural Elec.

Membership Corp., 454 U.S. 170 (1981); B.F. Goodrich Co.,

115 N.L.R.B. 722 (1956) (defining “confidential

employees” as persons “who assist and act in a confiden-

tial capacity to persons who formulate, determine and

effectuate management policies in the field of labor rela-

tions”).

2. The CBA did not provide “less favorable terms”

than the “move letter.” Petition at 6. In fact, the CBA

provided significantly more benefits and protections to

covered employees like Petitioner, such as employer con-

tributions to the various multiemployer benefit and pen-

sion plans, hours of work, overtime, holidays, job

referrals and job placement, and, of course, the grievance

and arbitration mechanism to resolve disputes such as

those involved in this case. Petitioner’s Excerpts of

Record on Appeal to Ninth Circuit at 94; Respondent's

Supplemental Excerpts of Record on Appeal to Ninth

Circuit at 15-17, 21-25, 29, 41-42; Defendant Kiewit Pacific

Co.’s Motion for Summary Judgment, filed December 17,

1991, Appendix “A” at 10-16.

3. Petitioner was not placed in a position that was

not covered by the CBA. Petition at 7. At all times during

his employment he was in a position that was covered by

the Operating Engineers’ CBA. Petitioner’s Excerpts of

Record on Appeal to Ninth Circuit at 148-153; Respon-

dent’s Supplemental Excerpts of Record on Appeal to

Ninth Circuit at 87-88, 93-94, 114.

¢

ARGUMENT

I. Summary of Argument

Petitioner frames the issue before the Court as being

whether the preemption analysis in Caterpillar, Inc. v.

Williams, 482 U.S. 386 (1987), requires the reversal of the

Ninth Circuit’s opinion that Section 301 of the Labor

Management Relations Act (“LMRA”), 29 U.S.C. § 185(a)

(“§ 301”), preempts a state law contract claim when the

alleged independent employment contract is breached

and the employee’s job is covered by a CBA. Petitioner

misstates the United States Court of Appeals for the

Ninth Circuit’s holding. Instead, the Ninth Circuit, con-

sistent with this Court’s decisions, correctly held that

Petitioner’s state contract claim was preempted by § 301

because his claim substantially depended on an inter-

pretation of the CBA and the “independent agreement”

that Petitioner sought to enforce against Respondent was

subsumed by the labor agreement. Beals, 114 F.3d at 894.

The Ninth Circuit’s opinion is consistent with this

Court’s decisions and with the decisions of the Courts of

Appeals for other circuits. The cases upon which Peti-

tioner relies to establish a “conflict among the circuits”

are factually distinguishable and, accordingly, reliance on

these cases is misplaced. There is no basis for this Court

to grant certiorari review.

Il. The United States Court Of Appeals For The Ninth

Circuit’s Decision Is Consistent With This Court's

Decisions.

Petitioner relies solely on the Caterpillar decision to

support his argument that the Ninth Circuit’s decision in

this case should be reviewed on certiorari. However,

there is no basis to grant certiorari because the Ninth

Circuit correctly concluded that this case and Caterpillar

are factually dissimilar and that the holding in Caterpillar

is not controlling. Beals, 114 F.3d at 894-95.

In Caterpillar, at the time that the employer made

promises of long-term managerial employment to the

aggrieved employees, the employees were not covered by

a CBA; they were managerial employees who were not

members of a recognized bargaining unit and whose

positions were not covered by the CBA. Caterpillar, 482

U.S. at 388. The employer subsequently downgraded the

employees to positions that were covered by the CBA and

eventually laid them off. Id.

After their employment terminations, the employees

sought to enforce in California state court the employer’s

oral and written representations to each of them that they

as managerial employees could look forward to “indefi-

nite and lasting employment with the corporation and

that they could count on the corporation to take care of

them.” Id. at 389 (citations and quotation marks omitted).

Under California law, such affirmative representations

and promises are enforceable against the employer. Id. at

389, n.2.

The critical question before the Court was “whether

[the employees’] state-law complaint for breach of indi-

vidual employment contracts [was] completely pre-emp-

ted by § 301 of the Labor Management Relations

Act, . . . and therefore removable to Federal District

Court.” Id. at 388. The Court’s primary concern was the

preemptive scope of § 301 so as to give rise to removal

jurisdiction.

In analyzing the “complete preemption” issue, the

Court focused on, among other things, whether a defen-

dant could remove a case to federal court based on the

assertion of a federal defense. Id. at 393. The Court held

that “a defendant cannot, merely by injecting a federal

question into an action that asserts what is plainly a state-

law claim, transform the action into one arising under

federal law, thereby selecting the forum in which the

claim shall be litigated.” Id. at 399. The Court concluded

that because adjudication of the state contract claim did

not require interpretation of the CBA, and because the

rights that the employees were seeking to vindicate were

independent of any CBA, there was no basis to invoke the

“complete preemption” doctrine so as to give rise to

federal removal jurisdiction. Id.

The Court noted that adjudication of the employees’

state “implied contract of employment” claim, predicated

on Pugh v. See’s Candies, Inc., 116 Cal. App. 3d 311,

327-329 (1981), and Cleary v. American Airlines, Inc., 111

Cal. App. 3d 443, 455-456 (1980), did not require inter-

pretation of the CBA. Under Pugh and Cleary, the trier of

fact, when faced with a California state law “implied

contract of employment” claim, would have to examine a

“combination of factors, including longevity of service,

commendations and promotions, oral and written assur-

ances of stable and continuous employment, and an

employer’s personnel practices.” Caterpillar, 482 U.S. at

389, n.2. Consideration of the Pugh “factors” was inde-

pendent of any provision of the CBA and did not “sub-

stantially depend” on an interpretation of the CBA, as the

representations related to management positions not cov-

ered by the CBA.

In contrast, the factual and legal issues presented in

this case are markedly different from the issues that were

addressed in Caterpillar. Here, the adjudication of Peti-

tioner’s state contract claim is substantially dependent on

an interpretation of the CBA. Lingle v. Norge Div. of Magic

Chef, Inc., 486 U.S. 399, 405-06 (1988). Petitioner sought to

enforce an alleged express contract of employment for a

definite duration. Respondent’s Supplemental Excerpts of

Record on Appeal to Ninth Circuit at 143. Under Hawaii

law, a contract of employment for a definite duration can

only be terminated “for cause.” See Vieira v. Robert's

Hawaii Tours, Inc., 2 Haw. App. 237, 630 P.2d 120 (1981).

Pursuant to the CBA at issue, Respondent had the right to

terminate covered employees like Petitioner for “just

cause” and/or for “lack of work.” Respondent’s Supple-

mental Excerpts of Record on Appeal to Ninth Circuit at

11, 29. Accordingly, whether or not Petitioner articulated

a cognizable and viable claim for breach of the “move

letter” would require the trier of fact to interpret the

CBA’s “just cause/lack of work” provision in order to

determine whether a breach of the “move letter” occurred

in the first instance.

This Court has consistently held that in the context of

federal labor law, the arbitrator appointed by labor and

a

management under the grievance procedures set forth in

a CBA has the power and authority to interpret and apply

the terms of that agreement, including the issue of

whether “just cause” exists to terminate a covered

employee’s employment consistent with the terms of the

CBA. United Steelworkers of America v. American Mfg. Co.,

363 U.S. 1031 (1960); United Steelworkers of America v.

Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). Here,

consistent with the decisions of this Court, the Ninth

Circuit correctly concluded that adjudication of Peti-

tioner’s state contract claim substantially depended on an

interpretation of the CBA, and accordingly, was pre-

empted by § 301. Allis-Chalmers Corp. v. Lueck, 471 U.S.

202, 220 (1985).

Furthermore, the “implied contract of employment”

claim at issue in Caterpillar required consideration of the

Pugh factors to determine whether the aggrieved

employees asserted a cognizable claim under California

law. Adjudication of the Pugh factors in Caterpillar did not

require an interpretation of the CBA at issue in that case,

and consideration of such factors was held to be indepen-

dent of the CBA, as the representations related to posi-

tions that were not covered by the CBA. Here, on the

other hand, Petitioner did not assert an “implied contract

of employment” claim predicated on the Pugh factors.

Respondent’s Supplemental Excerpts of Record on

Appeal to Ninth Circuit at 143. Indeed, the Hawaii

Supreme Court has refused to recognize such an “implied

contract of employment” claim based on Pugh. Calleon v.

Miyagi, 76 Haw. 310, 876 P.2d 1278 (Haw. 1994). Instead,

Petitioner asserted a breach of an express contract of

employment for a definite duration, which required proof

that Respondent articulated reason to terminate Peti-

tioner did not constitute “just cause.” This is precisely the

kind of issue that the arbitrator appointed pursuant to the

grievance procedures of the CBA has the specialized

knowledge, experience, and competence to adjudicate,

and which requires an interpretation of the CBA. United

Steelworkers of America v. Warrior & Gulf Navigation Co.,

363 U.S. 574 (1960).

Finally, Petitioner argues that the Ninth Circuit erred

in concluding that the “move letter” was “subsumed” by

the CBA. See Petition at 16-17. Respondent recognizes this

Court’s lesson in Caterpillar that “individual employment

contracts are not inevitably superseded by any subse-

quent collective agreement covering an individual

employee, and claims based upon them may arise under

state law.” Caterpillar 482 U.S. at 396, discussing J.I. Case

Co. v. NLRB, 321 U.S. 332 (1944). However, in this case,

the “move letter,” contrary to Petitioner’s unsupported

and conclusory factual statement that the “move letter”

was “more advantageous” than the CBA, in fact “sub-

tracted from” the rights and obligations under the CBA.

For example, the “move letter” does not address the

requirement that all employers-signatories to the CBA

must make contributions on behalf of covered employees

like Petitioner to the various multiemployer plans, such

as the Hawaii Health and Welfare Trust Fund for Operat-

ing Engineers, the Operating Engineers’ Pension Trust

Fund, the Pensioned Operating Engineers’ Health and

Welfare Trust Funds, the Hawaii Operating Engineers’

Annuity Trust Fund, and the Operating Engineers’ Vaca-

tion and Holiday Pay Plan. Respondent’s Supplemental

Excerpts of Record on Appeal to Ninth Circuit at 17-18.

i

Likewise, the “move letter” was silent as to the

“Referral, Hiring and Employment” mechanism to ensure

job placement and job referrals for terminated and/or

laid-off Operating Engineers like Petitioner; the hours

and overtime provisions and benefits (including meal

periods, two-shift and three-shift operations and night

work hours and benefits); and holidays. Petitioner’s

Excerpts of Record on Appeal to Ninth Circuit at 94;

Respondent’s Supplemental Excerpts of Recerd on

Appeal to Ninth Circuit at 15-17, 21-25, 29, 41-42; Defen-

dant Kiewit Pacific Co.’s Motion for Summary Judgment,

filed December 17, 1991, Appendix “A” at 10-16. In addi-

tion, the “move letter” and the CBA contain inconsistent

provisions regarding “subsistence and travel pay.” Com-

pare Section 18 of the CBA (Defendant Kiewit Pacific Co.’s

Motion for Summary Judgment, filed December 17, 1991,

Appendix “A” at 28-29) and Paragraph 2 of the Move

Letter (Petitioner’s Excerpts of Record on Appeal to

Ninth Circuit at 94). Certainly, the “move letter” is silent

as to the grievance mechanisms and procedural safe-

guards as provided in the CBA. Petitioner’s Excerpts of

Record on Appeal to Ninth Circuit at 94; Respondent's

Supplemental Excerpts of Record on Appeal to Ninth

Circuit at 21-25.

The Court instructed long ago in J.I. Case Co. v. NLRB,

321 U.S. 332 (1944):

Individual contracts, no matter what the circum-

stances that justify their execution or what their

terms, may not be availed of to defeat or delay

the procedures prescribed by the National Labor

Relations Act looking to collective bargaining,

nor to exclude the contracting employee from a

10

duly ascertained bargaining unit; nor may they

be used to forestall bargaining or to limit or

condition the terms of the collective bargaining

agreement . . . Individual contracts cannot sub-

tract from collective ones... .

Id. at 337, 339. See also Caterpillar, 482 U.S. at 396.

In his Petition, Petitioner has not provided any mer-

itorious analysis or argument based on this Court’s prior

decisions so as to justify the Court’s exercise of its discre-

tionary certiorari review power. The Ninth Circuit’s deci-

sion in this case is entirely consistent with the Court’s

federal labor law jurisprudence. Certiorari review,

accordingly, should be rejected.

III. There Is No “Conflict Among The Circuits” On

Whether Claims Such As Petitioner’s Are Pre-

empted By The Labor Management Relations Act.

Petitioner is incorrect in arguing that the Ninth Cir-

cuit’s decision is in conflict with decisions from the Third

and Eighth Circuits. Petitioner relies on Berda v. CBS, Inc.,

881 F.2d 20 (3d Cir. 1989), cert. denied, 493 U.S. 1062

(1990), and Anderson v. Ford Motor Co., 803 F.2d 953 (8th

Cir. 1986), cert. denied, 483 U.S. 1011 (1987), to support his

argument. Both of these cases involve facts that are dis-

tinguishable from the facts in this case, and, as a result,

require a different outcome from that of the Ninth Cir-

cuit’s decision in Beals. In both Berda and Anderson, the

employees sought to enforce narrow and limited pre-hire

agreements that specifically addressed only the duration

11

or permanency of employment. Under these circum-

stances, the Berda and Anderson courts held that no inter-

pretation of the CBA was necessary because the pre-hire

agreements that were being enforced were of such limited

and specific scope (relating only to the duration or per-

manency of employment) that there was no sufficient

overlap with the CBA to require the CBA to be inter-

preted in order to determine the rights under the pre-hire

agreements. In contrast, the “move letter” that Petitioner

sought to enforce against Respondent addressed

numerous different terms and conditions of employment,

many of which were also covered by the CBA (if not

inconsistent with the CBA) and was, therefore, so broad

and overlapping with the CBA that enforcement of it was

substantially dependent on an interpretation of the labor

agreement.

In Berda, the aggrieved employee asserted that dur-

ing a pre-employment meeting, the employer orally

“guaranteed employment . . . for the reasonably foresee-

able future, and that any job offered to him would . . . be

a permanent position.” Id. at 21. After accepting employ-

ment with the employer, the employee “was laid off as a

part of a company-wide reduction in force.” Id.

After being laid off, the employee filed a complaint

in state court alleging, among other things, breach of an

implied contract of employment/promissory estoppel. Id.

The breach of an implied contract of employment/prom-

issory estoppel claim was based on the alleged oral state-

ment made during the pre-employment meeting on

which the employee detrimentally relied. The employee

claimed that when the statement was made at the meet-

ing, the employer knew or should have known that the

12

company would be “conduct[ing] extensive layoffs in the

department and division . . . in which he was eventually

offered employment.” Id.

In concluding that § 301 did not preempt the

employee’s implied contract/promissory estoppel claim,

the Berda court noted that the employee’s state law claim

did not substantially depend on an interpretation of any

provision in the CBA. Id. at 26. Indeed, no interpretation

of the CBA was necessary because the agreement sought

to be enforced was a specific and narrow promise related

to the duration of employment. The “independent agree-

ment” was not a broad agreement with substantial over-

lap with the CBA. In fact, the Third Circuit observed that

in order to prove his breach of the implied contract of

employment/promissory estoppel claim, the employee

only needed to prove (1) that the representations that he

would not be laid off were made, (2) that he relied on

such representations, and (3) that the employer breached

its promise when it laid the employee off. Id. at 25.

The Berda court critically commented that the

employer’s only defense to the employee’s implied con-

tract of employment/ promissory estoppel claim was that

alleged representations “related to” the “basic terms and

conditions of [the emple 2e’s] employment,” and that the

alleged representations were “inconsistent with” the

seniority and layoff provisions of the CBA. Id. Under

these circumstances, the Berda court concluded that the

employee’s implied contract of employment/promissory

estoppel claim did not require interpretation of any pro-

vision of the CBA and, accordingly, was not preempted

by § 301.

13

In Beals, Petitioner did not assert an “implied con-

tract of employment” or a “promissory estoppel” claim

predicated on representations that were “independent” of

the CBA. Petitioner’s state law claim sounding in an

alleged breach of an express contract of employment for a

definite duration required consideration of the critical

factual issue that Respondent did not have “just cause” to

terminate him consistent with the CBA. Hence, adjudica-

tion of Petitioner’s contract claim was substantially

dependent on an interpretation of a fundamental provi-

sion set forth in the CBA. Furthermore, the terms and

conditions of employment that Petitioner sought to

enforce against Respondent as set forth in the “move

letter” were far broader than the terms and conditions of

employment that the employee in Berda was seeking to

enforce against his employer. Adjudication of Petitioner’s

contract claim based on the “move letter,” accordingly,

required interpretation of the CBA and its provisions as it

related to the provisions set forth in the “move letter.”

Moreover, unlike Berda, where the alleged representa-

tions and promises were held to be “advantageous” to the

employee, here, as discussed above, the “move letter” is

silent as to crucial collective benefits, safeguards, and

protections as provided in the CBA. As such, and consis-

tent with J.I. Case and Caterpillar, the “move letter” was

subsumed by the CBA, and any contract claim predicated

on the “move letter” is preempted by federal labor law.

The Ninth Circuit was correct in so concluding.

Petitioner also points to the Eighth Circuit’s decision,

Anderson v. Ford Motor Co., 803 F.2d 953 (8th Cir. 1986),

cert. denied, 483 U.S. 1011 (1987), a two-to-one decision

14

that was decided prior to Caterpillar, to support his argu-

ment that there is a “conflict” among the federal appel-

late courts. Reliance on Anderson is misplaced. The

employer in Anderson, pursuant to the CBA, began to hire

laid-off employees from a preferential hiring list in order

to meet an increase in production requirements. Id. at 954.

In addition, the employer began to contact former

employees who had been laid off three years earlier, but

whose recall rights had expired given the length of time

that they had been on layoff. Id. These employees were

employed as new hires and placed on a 90-day probation-

ary period consistent with the CBA in place with the

union.

The probationary employees alleged that when they

were contacted by the employer, the employer promised

them that they would be hired as “permanent

employees.” Id. at 955. However, prior to the expiration

of the probationary period, the employees “were

‘bumped’ from their jobs by employees from the prefer-

ential hiring list.” Id. at 954-55. The probationary

employees asserted state tort and contract claims against

the employer. The employer removed the case to federal

court based on the “complete preemption” doctrine, and

successfully dismissed the probationary employees’ com-

plaint.

The Eighth Circuit reversed and concluded that

because the probationary employees’ contractual and

quasi-contractual claims did not “originate in, nor refer in

any substantial way to, the rights and duties established

in the collective bargaining agreement,” their state law

claims were not preempted under § 301. Id. at 958. The

Anderson court's decision is consistent with and dictated

15

by the limited and specific nature of the pre-hire agree-

ment that the employees were seeking to enforce, which

only addressed the permanency or duration of their

employment. The Anderson court cited to J.J. Case in a

footnote, and concluded that “individual contracts” that

“[are] separate and distinct from a collective bargaining

agreement can create legally enforceable rights and obli-

gations.” Id. at 958, n.7, citing J.I. Case Co. v. NLRB, 321

U.S. 332, 336. Given the narrow breadth of the “contract”

that the employees were seeking to enforce against the

employer - the “permanent” duration of their employ-

ment — the Anderson court properly concluded that the

rights that the employees were seeking to enforce against

the employer did not require interpretation of the CBA,

nor were such promises “subsumed” by the CBA.

On the other hand, in Beals, Petitioner sought to

enforce the terms of the “move letter” that broadly

addressed conditions of employment with Respondent,

many of which were covered by, and, in some instances,

were inconsistent with the CBA. The position for which

Respondent hired Petitioner was a position that was cov-

ered by the CBA, and his employment terms and condi-

tions were governed by the CBA at all times. As such,

and given the breadth and overlap between the terms of

the “move letter” and the CBA, the Ninth Circuit prop-

erly found that the “contractual rights” that Petitioner

sought to enforce were substantially dependent on an

interpretation of the CBA to determine whether or not his

contract claim was cognizable and viable under Hawaii

law. Moreover, as discussed above, under J.J. Case, the

terms of the “move letter” significantly “subtracted from”

the rights and obligations under the CBA and, in fact,

16

were inconsistent with the CBA. Thus, the Ninth Circuit

was entirely correct in preempting Petitioner’s state con-

tract claim, and the Ninth Circuit’s decision is consistent

with the Anderson decision.

Finally, Petitioner identifies White v. National Steel

Corp., 938 F.2d 474 (4th Cir. 1991), cert. denied, 502 U.S. 974

(1991), as being “in substantial conflict with the Ninth

Circuit’s decision in the instant case.” However, White is

easily distinguishable from the instant case and is based

on facts that are completely different from those pre-

sented in this case. The “independent contracts of

employment” that the employees in White were seeking

to enforce were management contracts: “The promises

plaintiffs seek to enforce are those that [the employer]

made to them in negotiations over the terms of employ-

ment in management positions.” Id. at 483. As such, the

employees “were not in positions covered by a collective

agreement,” and therefore, adjudication of their state con-

tract claims did not substantially depend on an inter-

pretation of the CBA. Id. at 484. Because the employees in

White were hired for positions not covered by the CBA,

no interpretation of the CBA could even be relevant.

White, accordingly, does not support Petitioner’s argu-

ment at all. Indeed, White is consistent with the Ninth

Circuit’s application of Caterpillar in this case.

The Ninth Circuit's decision in the instant case is also

consistent with the Fifth Circuit and the Eleventh Cir-

cuit’s decisions. In Eitmann v. New Orleans Public Service,

Inc., 730 F.2d 359 (5th Cir. 1984), reh’g denied, 738 F.2d 437,

cert. denied, 469 U.S. 1018 (1984), the Fifth Circuit

analyzed an aggrieved employee’s state contract claim

that is factually similar to Petitioner’s. In Eitmann, prior

17

to being hired, the employee alleged that the employer

“promised to keep [the employee] on the payroll at full

compensation in the event of a disabling work-related

injury.” Id. at 361. During his employment, the employee

was injured several times on the job. Id. After his latest

injury, the employer terminated him, “advising him that

it had no suitable work available that he was capable of

performing.” Id. “At all times during his employ-

ment ..., [the employee] was a member of [a union]

which maintained a collective bargaining agreement with

[the employer].” Id.

The CBA in Eitmann contained provisions for the

discharge of employees. Id. at 360-61. Further, the labor

agreement contained provisions for the handling of griev-

ances. Id. at 361. Notwithstanding these provisions in the

CBA, the employee filed a breach of contract claim in

state court based on the employer’s alleged promise of

continued employment. In response, the employer

asserted that the employee’s claim arose under § 301 of

the LMRA, removed the action to federal district court,

and successfully had the case dismissed after moving for

summary judgment on the ground that the state contract

claim was completely preempted by § 301. Id.

On appeal, the Fifth Circuit noted that the

employee’s breach of contract claim, “on its face, [did]

not invoke the collective bargaining agreement.” Id. at

362. However, the court observed that it was not con-

vinced “that the two agreements [could] be construed so

independently of each other,” especially since the alleged

oral contract essentially provided

18

for lifetime employment, regardless of [the

employee’s] ability to perform any services for

the employer; in other words, unlike all of the

other employees covered by the collective bar-

gaining agreement, [the employee] could not be

discharged because of his physical inability to

perform any services for [the employer].”

Id. at 362-63. The court concluded that the alleged oral

contract clearly sought to “limit or condition the terms of

the CBA, which established the terms and conditions of

employment, including discharge,” and thus held that the

employee’s breach of contract “action is necessarily pre-

empted by § 301.” Id. at 364.

Here, as in Eitmann, Petitioner alleged that prior to

being hired, Respondent promised him employment in a

covered position that would last two years. At all times

during his employment with Respondent, Petitioner was

a member of the Operating Engineers’ union. As with the

employee's claim in Eitmann, Petitioner's claim, “on its

face, [did] not invoke the collective bargaining agree-

ment.” Id. at 362. Furthermore, as in Eitmann, Petitioner

asserted that he was promised employment for a definite

duration and that he would remain so employed regard-

less of the discharge provisions under the terms of the

CBA. Under these circumstances, accordingly, the Ninth

Circuit, consistent with Eitmann, was correct in preempt-

ing Petitioner’s contract claim.

Likewise, the Eleventh Circuit's decision in Darden v.

U.S. Steel Corp., 830 F.2d 1116 (11th Cir. 1987), is also in

agreement with the Ninth Circuit’s decision in the instant

case. The employees in Darden were previously laid off

employees who had been recalled for employment. Id. at

19

1117-18. The employees claimed that at the time of their

recall interview, agents of the employer induced them to

take jobs with the company by making statements to the

effect that the employer had enough work to guarantee

their employment for at least ten years. Id. Thus, when

the employees were laid off three years after being

rehired, they asserted claims against the employer for

breach of an oral employment agreement for definite

duration and fraudulent misrepresentation in state court.

The cases were removed to federal district court where

summary judgment was granted in favor of the employer.

Id.

During their employment, the employees were cov-

ered by a comprehensive labor agreement that “gov-

ern{ed] such subjects as rates of pay, hours of work,

seniority, layoffs, reductions in force, terminations, sever-

ance pay, complaints, grievances and arbitration.” Id.

Additionally, the labor agreement included a mandatory

grievance and arbitration procedure to settle disputes

between the employees and the company. Id.

On appeal, the Eleventh Circuit noted that:

[W]hile individual contracts between employer

and employee are not precluded by the exis-

tence of a collective bargaining agreement, to

the extent that an individual contract and a col-

lective bargaining agreement are inconsistent,

the latter must prevail.

Id. at 1120 (citing Eitmann, 730 F.2d at 362). Accordingly,

the Eleventh Circuit affirmed the judgment of the district

court in dismissing the employees’ complaint.

20

Here, as in Darden, Petitioner was covered by a com-

prehensive labor agreement that detailed such subjects as

rates of pay, hours of work, seniority, layoffs, reductions

in force, multiemployer plan contributions, terminations,

grievances and arbitration. As in Darden, the “indepen-

dent agreement” that Petitioner sought to enforce was

inconsistent with, indeed, “subtracted from” the labor

agreement. Consistent with this Court’s decisions and the

Eleventh Circuit’s decision in Darden, the Ninth Circuit

here, under these similar circumstances, correctly con-

cluded that “the CBA controls.” Beals, 114 F.3d at 894.

¢

CONCLUSION

Certiorari review of this case is not warranted and

should be rejected. The Petition for a Writ of Certiorari

does not present a substantial and unique issue in federal

labor law that requires this Court’s guidance and clari-

fication. The Ninth Circuit’s decision properly followed

Caterpillar and j.I. Case, which provide clear guidance

regarding preemption under § 301 when adjudication of

the state contract claim substantially depends on an inter-

pretation of the CBA and the contract upon which an

employee bases his claim is subsumed by the CBA. Fur-

ther, the Ninth Circuit’s decision in this case is consistent

with the Third and Eighth Circuits’ decisions, as these

cases are factually dissimilar.

21

The Court should, accordingly, deny the Petition for

a Writ of Certiorari. January 8, 1998.

Respectfully submitted,

Ernest H. Nomura*

CuHar.es W. GALL

| KosayasHi, Sucita & GoDA

999 Bishop Street, Suite 2600

First Hawaiian Center

Honolulu, Hawaii 96813

(808) 539-8700

Counsel for Respondent

* Counsel of Record